Pets and Estate Planning

By: Clark, Campbell, Lancaster & Munson, P.A.

When we think about estate planning, we generally focus on our family and friends, but what about our pets that may outlive us? We would like to think that our family and friends will want to care for our pets upon our death, but this is not guaranteed. This article is a general overview of steps that you can take to more effectively ensure that your pets will be cared for in conformance with your wishes during your lifetime and upon your death.

Q: My friend expressed that she will care for my pets if anything were to happen to me, should I still include my pets’ care in my estate planning?

A: Yes, in your Last Will and Testament (“Will”), you should give your pets to your friend. However, keep in mind that your friend may ultimately change her mind, or alternatively, your friend may predecease you. At the very least, you should consider naming alternates to care for your pets.

Q: How does a Will effectuate my wishes concerning my pets’ care?

A: A Will reflects your intent concerning your pets’ care, but the directives are not enforceable. While we may consider our pets a companion or a member of our family, by law, our pets are considered property. Pets can be conveyed through a Will like any other type of property that you may own. However, as property, a beneficiary can also disclaim or refuse to accept ownership of your pet. For example, in your Will, you give your pets to your friend, but shortly after your death, your friend discovers that she is severely allergic to your pets, and a result, she refuses to accept ownership of your pets.

Q: Is there anything else I should be concerned about if I were to rely solely on a Will regarding my pets’ care?

A:  Yes.  A Will does not consider the care of your pets during your lifetime and may not be immediately effective upon your death. For instance, you are determined to be incapacitated and you are subsequently admitted to a nursing home. The Will does not direct your pets’ care while you are incapacitated. Further, if your estate is subject to probate, a Will does not direct your pets’ care during the probate process. For these reasons, you may want to supplement your Will with a pet trust.

Q: What is a pet trust?

A: Florida, like most states, has adopted pet trust statutes. A pet trust is a legal arrangement concerning your pets’ care during your lifetime and upon your death. The trustee of a pet trust will hold funds for the benefit of your pets and will disburse such funds to a designated caregiver of your pets. The benefit of a pet trust, in contrast to a Will, is that a pet trust is enforceable, specific, effective during your lifetime and upon your death, and allows you to have control of your pets’ care with the oversight of a trustee after your death. In Florida, a pet trust will not terminate until your pets’ death, unless you direct otherwise.

Q: Is there anything else I should consider when formulating my pets’ care in my estate planning documents?

A: Yes. Due to the reasons discussed above, consider naming a rescue organization as a last resort to care for your pet. Additionally, you may want to consider naming not only the pets that you currently have, but also reference any pets you may acquire in the future. Finally, a pet trust can be as general or specific as you desire. For example, in a pet trust, you could direct the type of food your pets will be fed or which veterinarian will be used for your pets’ health issues.

If you wish to direct your pets’ care in your estate planning documents or wish to set up a pet trust, it is advisable to seek counsel from an estate planning attorney.

Recent Court Case Might Not Be Just for the Birds

By: Anthony A. Velardi, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

 

Q: I raise wild birds for sale as pets on my property.  Can I qualify for an agricultural tax exemption for my property?

 A:  In McLendon v. Nikolits, the 4th District Court of Appeal (DCA) recently held that a property owner who engages in aviculture – raising wild birds for sale as pets – can qualify for an agricultural tax classification for the part of their property used for aviculture.  The 4th DCA’s decision may also perhaps be applied to other types of pet breeding, such as dog breeding, and the agricultural tax exemption if they qualify.

Todd and Shire McLendon own a 5-acre parcel located in Palm Beach County, and the McLendons have used the property for aviculture since 2006.  From 2006 through 2012, the Palm Beach County Property Appraiser granted an agricultural tax classification for 4.5 of their acres because of its dual uses for aviculture and cattle grazing.

In 2012, the Property Appraiser denied the agricultural tax classification for the McLendons’ 4.5 acres and issued the tax classification for only 2.25 acres.  The McLendons appealed, and the Value Adjustment Board (VAB) held that 4.5 acres should be given the agricultural classification.

In 2013, the Property Appraiser again denied the agricultural tax classification for the part of the property devoted to aviculture.  The McLendons appealed again, and a special magistrate appointed by the VAB found in favor of the McLendons.  The Property Appraiser appealed to the circuit court, and the Property Appraiser also denied the agricultural classification for 2014.

The Property Appraiser argued that the legislature intended to limit agricultural activities to only those listed in the statute because the legislature included only “poultry” and not “aviculture” in the list of activities that constitute “agricultural purposes” in the statute.

However, the McLendons argued that the legislature did not intend for the list to be exclusive or exhaustive because the legislature used “includes, but is not limited to” in the statute.

The trial court concluded that aviculture was intentionally left out of the statute and that bird-related activities qualifying as agriculture were limited to “poultry.”  The trial court also indicated that allowing the breeding of pets, and birds in particular, to qualify for an agricultural exemption, would open the floodgates and allow many landowners to claim the agricultural exemption for various types of pet breeding thus in turn leading to abuse of the system.

On appeal, the 4th DCA found that “includes, but is not limited to” is not ambiguous, and the 4th DCA found that the term “farm product” is defined in Fla. Stat. § 823.14(3) as “any…animal…useful to humans” under the Florida Right to Farm Act.

Through the use of expert witness affidavits at trial, the McLendons were able to convince the court that aviculture is useful to humans for reasons such as companionship, concern for endangered species, entertainment, education, and scientific purposes.

Accordingly, the 4th DCA reversed the trial court’s decision and held that the McLendons’ portion of the property used for aviculture qualifies for an agricultural tax exemption.  It will be interesting to see how the Polk County Property Appraiser reacts to this recent decision, and unless the Florida legislature closes this loophole, this might be a case for the 2nd DCA and perhaps Florida Supreme Court to decide if there is a conflict between DCA’s.

 Anthony Velardi is a Martindale-Hubbell A/V Rated attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland.  Anthony graduated from the University of Notre Dame in 2006 and Stetson University College of Law in 2009.  Questions can be submitted to thelaw@cclmlaw.com.

Emotional Support Animals

By: Dan Rich
Clark, Campbell, Lancaster & Munson, P.A.

Q: What is an emotional support animal, and how does it differ from a service animal?

 A: Have you ever walked into a restaurant to see a teacup Chihuahua locking eyes with you from across the room? If so, you probably were wondering how this precious little guy’s owner was able to bring an animal into an eating establishment. It may be because this Chihuahua has been labelled as his owner’s emotional support animal, or “ESA”. Americans commonly treat their pets as another member of the family. But while most keep their pets at home, some bring their pets everywhere they go, including local businesses.

While ESAs are recognized under federal law, they do not have unfettered access. Federal law currently requires accommodations for ESAs in housing decisions and when traveling on an airplane. A claim that an ESA has a right to be in a public place is misguided, because an ESA differs from a service animal. A service animal is “individually trained to do work or perform tasks for the benefit of an individual with a disability,” whereas an ESA “provides a therapeutic benefit to an individual with a mental disability.” Under federal law, a service animal is permitted to go anywhere, including public places.

When a business is faced with a pet owner attempting to make reservations for himself and his dog, the business must quickly decide whether it is dealing with a service animal or an ESA. To help decide, the law permits the business to ask the following, and only the following, two questions:

  1. Whether the animal is required because of a disability; and
  2. What “work or task” the animal has been trained to perform.

Under Florida law, if access is denied and the animal was in fact a service animal, a public establishment can face criminal penalties. Most businesses prudently open the floodgates to most pets with legally sufficient answers to the above questions, because doing so is safer then facing criminal prosecution.

While emotional support from an animal can be a wonderful and necessary thing, it causes a rift among the service animal community. Mislabeled ESAs can be disruptive and disobedient, in turn stigmatizing service animals and their disabled owners.

Affected businesses should consider investing resources to train their employees to properly address requests for animal accommodation.

The February 11th edition of “The Law” will discuss the tax benefits of a 1031 exchange when buying and selling real estate.

 Dan Rich is an attorney with the Lakeland law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@clarkcampbell-law.com.

Animal Cruelty

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: It appears animal cruelty is on the rise. What laws are in place to protect these animals?

A: For years, compassion for animals and anger toward abuse have been triggered by circus elephant acts, killer whales in confinement, and greyhound races. But, partly because the law allows these exhibitions, only recently have we heard of changes, such as Ringling Brothers voluntarily retiring its elephants. The Florida legislature continues to expand protections for animals, including this month by taking a look at bills to protect greyhounds and horses involved in racing, with some lobbying groups trying to make greyhound racing unprofitable.

An extensive set of animal cruelty laws exist, primarily protecting livestock, dogs, and cats from the more horrifying stories we have heard recently, like animals being tied to railroad tracks or hung to death. A “zombie cat” allegedly buried alive was taken into possession by an animal welfare organization. While individuals could be accused of theft for taking another’s pet away regardless of suspected abuse, Florida allows certain organizations (in addition to law enforcement) to have an agent appointed for that purpose. When an animal is seized, a court hearing follows to determine whether the animal will be returned.

With limited exceptions, animal cruelty includes allowing any “unnecessary or unjustifiable pain or suffering”. Tormenting, starving, and mutilating all fall within this term and are at least a first degree misdemeanor (up to $5,000 fine / 1 year imprisonment) and as much as a third degree felony (up to $10,000 fine / 5 years imprisonment) for repeated, intentional acts, acts that result in death, or being any part of dog fighting (breeding, training, owning, promoting, betting, attending, or otherwise). Additional specific offenses prohibited by law include keeping a dog confined without exercise, abandoning in a public place, lassoing of horses for entertainment or sport, engaging in simulated bullfight exhibitions, allowing others to be exposed to a known contagious animal, and artificially coloring an animal under 12 weeks of age.

Contact animal control or other local law enforcement if you suspect animal cruelty is occurring in your neck of the woods.

 

The April 9th edition of “The Law” will celebrate National Public Health Week and address the dichotomy between science and the law on the issue of GMOs.

Questions can be submitted online to thelaw@clarkcampbell-law.com.]

Don’t Get Bitten by Pet Liability

By: Clark, Campbell, Lancaster & Munson, P.A.

Q: What is my liability if my dog bites someone?

A: While each year only about one or two Floridians die from dog bites, some five hundred state residents could go to the hospital with injuries. In what is hopefully not a signal that the legislature thinks dogs are inherently dangerous nuisances, a whole chapter of Florida Statutes covers damage by dogs. Some of the provisions are more unusual than others, such as that it is lawful to kill a dog roaming over the country if that dog is known to have killed sheep. (Please think twice before assuming a loose dog in your neighborhood fits this definition.)

The most talked about provision is the “dog bite statute”, which generally pegs the pet owner with responsibility for his dog biting anyone who is not trespassing. One exception or reduction to the owner’s liability may exist if the bitten person negligently provoked the dog in a way that the person should have known would lead to a bite. Also, where the owner posts a conspicuous sign at his home reading “Bad Dog”, he may be able to limit or eliminate his liability for bites (except where those bites are of children under 6 or where the owner has acted negligently, which could include failure to supervise children). Of course, the owner should not expect to get such protection if he tells his party guests to ignore the yard sign’s warning.

Despite a common misconception otherwise, Florida does not have a “one free bite” rule allowing owners insulation from liability when their dogs have not shown prior dangerous tendencies. However, dogs deemed “dangerous” or under investigation by animal control authorities are subject to heightened standards (that may differ from county to county) and strict criminal penalties for owners of such dogs who do in fact bite.

One final point: reduce your worries by verifying that your homeowner’s insurance covers your dog’s bites.

 

The March 12th edition of “The Law” will cover crafting an effective power of attorney as part of your estate and long-term care plan to help you delegate authority and avoid fraud or misuse of your assets.

Questions can be submitted online to thelaw@clarkcampbell-law.com.]