Background
After Donald Myron Gerson died intestate, his surviving spouse, Sandra Gerson, sought to take an elective share of his estate. Sandra had previously executed a durable power of attorney appointing her son, Zane Ullman, as attorney-in-fact, with authority to protect and conserve property in which she had an interest.
Ullman petitioned the probate court for approval to exercise Sandra’s elective-share right. The decedent’s adult children objected, contending that the power of attorney did not specifically authorize the election and that an evidentiary hearing was required to determine Sandra’s best interests. The probate court ruled that taking the elective share was in Sandra’s best interest and authorized Ullman to make the election. The children appealed.
The Court’s Holding
The Third District dismissed the appeal for lack of appellate jurisdiction. The probate order was neither a final order nor an appealable nonfinal probate order under Florida Rule of Appellate Procedure 9.170.
The order did not determine anyone’s entitlement to estate assets or the estate’s interest in property. It only found that an elective-share election would be in Sandra’s best interest and authorized Ullman to make one. The record contained no order adopting or ratifying the separate election papers Ullman had filed, leaving the parties’ ultimate rights contingent on future events.
Key Takeaways
- An order authorizing an attorney-in-fact to make an elective-share election is not necessarily final for appellate purposes.
- A best-interest finding and authorization to act do not themselves determine entitlement to estate property.
- The court did not reach the merits of the authority or best-interest objections.
Why It Matters
Probate litigants must distinguish between orders permitting a future step and orders that finally determine property rights or distributions. Absent finality or a rule authorizing interlocutory review, an appeal will be dismissed even where the underlying probate ruling may substantially affect later proceedings.