Third District Court of Appeal
State of Florida
Opinion filed August 26, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-1990
Lower Tribunal No. 25-2357-CP-02
Dana Gerson Rosenberg, et al.,
Appellants,
vs.
In Re: Estate of Donald Myron Gerson,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Sloto & Diamond, PLLC, and Seth S. Diamond and Carolyn L. Kirkland, for appellants.
Minerley Fein, P.A., and Andrew Fein (Boca Raton), for appellee.
Before SCALES, C.J., and LOGUE and BOKOR, JJ.
BOKOR, J.
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
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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,
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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.
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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.
1
Because we dismiss for lack of appellate jurisdiction, we take no position on the merits of the arguments raised.
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