ROSENBERG v. ESTATE OF GERSON (2026)

ON MOTION TO DISMISS

This appeal comes from an order of the probate court, ruling that (1) an elective share of the probate estate is in the best interest of the decedent's surviving spouse, and that (2) the surviving spouse's attorney-in-fact is authorized to make the election on her behalf. Because the order is non-final and not otherwise appealable, we have no jurisdiction.

I.

On March 5, 2015, Sandra Gerson executed a durable power of attorney appointing her son, Zane Ullman, as attorney-in-fact. The document authorizes Ullman to “protect” and “conserve” any property in which Gerson may have an interest. On March 14, 2025, Gerson's husband, Donald Myron Gerson, died intestate, survived not only by his spouse Sandra but by the appellants Dana Gerson Rosenberg and Mindy Dara Gerson—the decedent's two adult children.

The decedent's children filed for administration of the estate. On June 20, 2025, Sandra moved to take an elective share as the surviving spouse. The decedent's children moved to strike her filing as legally insufficient. On September 10, 2025, Ullman, as Sandra's attorney-in-fact, filed his “Petition for Approval to Exercise Right of Election,” claiming that it was in Sandra's best interest to take an elective share as a matter of law and asking the trial court to “authoriz[e] him to file the election on her behalf.”

The decedent's children objected to the petition, arguing that the “protect and conserve” language in the power of attorney was not specific enough to grant Ullman authority to act on Sandra's behalf in the context of exercising a spousal election, and that an evidentiary hearing was required for the best interest question. The trial court disagreed on both counts and issued the October 1, 2025 order on appeal, granting Ullman's “Petition for Approval to Exercise Right of Election,” entering the best interest finding as a matter of law, and ruling that Ullman, “as Attorney-in-Fact for Sandra Gerson, is authorized to make the election.”

The day before this order was issued, Ullman filed separate papers titled “Election to Take Elective Share,” wherein he “hereby elects to take an elective share.” But the record contains no order adopting or ratifying such purported election; the notice of appeal attaches only the October 1, 2025 order which makes the finding that such an election would be in Sandra's best interest and authorizes Ullman to make an election.

II.

Appellants argue that this order finally determines the rights or obligations of an interested person, either because it “grant[s] heirship, succession, entitlement, or determine[s] the persons to whom distribution should be made,” Fla. R. App. P. 9.170(b)(5), or because it “determine[s] an estate's interest in any property.” Fla. R. App. P. 9.170(b)(12). This is not so. Neither the finding of best interest nor the court's mere authorization to proceed with an election determines any party's entitlement to a portion of the estate. Nor does it finally determine the ultimate rights or obligations contemplated; on the record before us, they remain contingent on future events. While the traditional test of an order's finality is that it marks the end of judicial labor, see Caufield v. Cantele, 837 So. 2d 371, 375–76 (Fla. 2002), this order expressly recognizes that the election has not yet been invoked or ratified.

In Jacobs v. Jacob, 405 So. 3d 468 (Fla. 3d DCA 2025), this court dismissed an appeal ostensibly proceeding under Florida Rule of Appellate Procedure 9.170(b)(5) or (12) for lack of jurisdiction. As the court concluded, a ruling on whether a party “ha[d] status to act” on behalf of a related entity did not make the order final with respect to that party's ultimate action. Id. at 470. That conclusion was supported, as here, by the fact that the order contained no “words of finality” suggesting otherwise. Id.

III.

Because the order on appeal is neither final nor an appealable nonfinal order, we dismiss the appeal for lack of appellate jurisdiction.¹

Appeal dismissed.

FOOTNOTES

1.   Because we dismiss for lack of appellate jurisdiction, we take no position on the merits of the arguments raised.

BOKOR, J.