Unleashing Pets from Dead-Hand Control

Many pet owners feel strongly about their animals. Some feel so strongly that they desire their pets to accompany them to the grave. This Article addresses the validity of pet euthanasia provisions in decedents’ wills. Pet owners generally have the legal power to humanely euthanize their pets. In addition, the primary focus of the law of wills is to effectuate the wishes of the decedent. These two facts seem to counsel in favor of carrying out a testamentary instruction to humanely euthanize a companion animal. Yet courts generally decline to enforce pet euthanasia provisions whenever an objection is raised by someone who is willing to care for the animal. Why is this? Neither courts nor commentators have converged on a consistent explanation as to why pet euthanasia provisions in wills should not be enforced. Some impose a tortured construction of the language of the will to find that the testator’s very clear instruction to euthanize their pet was not their true intent. Others find the euthanization of a healthy animal to violate a public policy in favor of animal welfare. Others find that euthanization of a healthy animal amounts to waste, at least when the animal is purebred or otherwise monetarily valuable. Many analyses combine bits and pieces of numerous approaches to create an analytical potpourri to justify the result. This Article agrees with the outcome of finding testamentary pet euthanasia provisions unenforceable. It then comprehensively analyzes each of the rationales against enforcement of pet euthanasia provisions that have been offered by courts and commentators to date. In doing so, it finds significant flaws in the multifaceted approach employed by many courts and commentators in the past. Instead, this Article proposes that the antiwaste doctrine should be used as the single, simple, and sufficient rationale against enforcing pet euthanasia provisions in decedents’ wills