Rosenberg v. In Re: Estate of Donald Myron Gerson
A surviving spouse's attorney-in-fact petitioned the probate court for approval to exercise the spousal right of election; the court found the elective share was in the spouse's best interest as a matter of law and authorized the attorney-in-fact to make the election. The decedent's adult children appealed, invoking Florida Rule of Appellate Procedure 9.170(b)(5) and (b)(12). The Third District dismissed for lack of appellate jurisdiction, holding the order was neither final nor an appealable non-final order.
Key facts
- Surviving spouse's attorney-in-fact petitioned probate court for approval to exercise the spousal right of election in the estate of Donald Myron Gerson.
- The trial court found the elective share was in the spouse's best interest and authorized the attorney-in-fact to make the election, but expressly noted the election had not yet been invoked or ratified.
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Why it matters
Probate practitioners frequently treat Rule 9.170(b) enumerated orders as automatically appealable; this opinion narrows that assumption by holding that authorization/status-type orders are not final even when they… — full analysis with a trial
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