CALIFORNIA’S NEW PET TRUST STATUTE: MAYBE THE LEGISLATURE WILL GET IT RIGHT EVENTUALLY

By Kenneth W. Kossoff^*

I. INTRODUCTION

In a 1994 majority opinion, California Supreme Court Justice Joyce Kennard spoke of the "wonderful companionship and affection" that dogs and cats provide to those of us who have them.¹ And in a recent dissent she expressed doubt as to whether "Jaws the goldfish, Tweety the canary and Hank the hamster . . . would strike fear in a probation officer."² But while pets may not be new to the hallowed hallways of the California Supreme Court, they have not regularly appeared in lowly probate courts (though, to be sure, parties and their attorneys may sometimes behave like animals).

With new Probate Code³ section 15212, which took effect on January 1, 2009, California finally joins the nearly forty other states which have enacted legislation enabling the creation of legally enforceable trusts for the care of the trustor’s pets after the trustor’s incapacity or death.⁴ Of course California, being California, added certain unique provisions. Regrettably, some of these may discourage people from agreeing to act as caregivers for the pets of friends or relatives, and thereby undermine the purpose of the law, which is to enable pet owners to ensure that their pets are properly cared for and do not end up euthanized after their owners die or become incapacitated.