Often considered as members of the family, animals inevitably suffer the misfortunes that can strike us.

Many households are therefore faced with the question of the future of their animal in the event of separation or death.

While France is the European champion of abandonment, what are the legal provisions that allow you to protect your companion?

A good to share

If the animal has been recognized by law as a "living being endowed with sensitivity" since 2015, it is nonetheless subject to the legal regime of property. Despite the emotional ties, only the person who bought it, adopted it or received it as a gift is therefore its owner. In the event of the break-up of a cohabiting, PACS or married couple in separation of property, the question of custody is therefore easy to settle when only one of the two members is at the origin of the purchase or adoption.

But the situation becomes more complicated when this proof cannot be provided or when the protected person has been acquired by the two people, since it is then considered as joint property, in other words belonging to both.

The same is true when the four-legged companion has joined the home after the wedding, while the spouses have united without a contract (regime of the community reduced to acquests).

Finally, if they have chosen the universal community, the animal belongs anyway to both.

Well-being dictates choice

As with everything concerning separations and divorces, in the absence of an amicable agreement, it is the family court judge who decides. And more and more courts are considering pet custody claims. It is no longer a question of property but of well-being. The living conditions (size of the accommodation, garden, etc.), the ability to take care of the cat or the dog (time to allow for walks, veterinary care, etc.), as well as the bonds of attachment between the person seeking custody and the furry or feathered companion are all criteria taken into account here.

Some magistrates even agree to decide on requests for shared residence for the animal, whereas this notion is in principle reserved for the custody of children.

We are still far from Spanish law, which officially recognizes this right since January 5, 2022. Finally, to be able to take care of your animal, it is possible to request a financial contribution from your ex-spouse before the judge.

Legacy in the absence of inheritance

The most sensitive question remains what will happen to our faithful companions when we die. French law prohibits animals from inheriting. On the other hand, you can include in your will a bequest with charge which consists in transmitting your goods by requiring a counterpart. You can thus donate part of your assets to a relative or to an animal protection association, on the condition that you take care of your protege and provide him with all the necessary care until his death.

Please note, however, that only foundations, endowment funds and recognized associations of public utility or general interest can receive this type of bequest.

In addition, it is better to have obtained the agreement of the beneficiary and agreed on the terms during your lifetime (in particular the amount of money you will leave to cover maintenance costs) to avoid a refusal at the time of your succession.

Finally, be aware that it is above all a question of trust insofar as no one will check the proper execution of this consideration.

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The missed act

If the legacy with charge has the merit of existing, it is not satisfactory, especially when we know its taxation. In the absence of a family relationship between the deceased and the beneficiary, this transmission is indeed taxed at 60%. Only associations recognized as being of public utility are exempt from these inheritance taxes.

This is the reason why Vic Burgan, a young notary, imagined an animal protection mandate.

Signed by both parties and the notary in charge of registration, this deed would make it possible to designate a person of trust who would agree to take care of the little protege in the event of the incapacity or death of his master.

After being rewarded in 2018 by the Jules-Michelet prize from the 30 million friends Foundation, this idea was taken up in the bill against animal abuse, before being deleted from the final text published on December 1, 2021.

  • Succession

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