A Florida court has dismissed an appeal concerning the estate of Donald Myron Gerson, impacting his surviving spouse and children. The Third District Court of Appeal ruled that it did not have jurisdiction over the case due to the nature of the order being appealed. This ruling is significant as it clarifies the legal boundaries regarding elective shares in probate cases.
The case, Dana Gerson Rosenberg v. In Re: Estate of Donald Myron Gerson, was filed under docket number 3D2025-1990. The court's decision was issued on August 26, 2026, and it addressed the legal authority of a surviving spouse's attorney-in-fact to make an election regarding the estate.
The parties involved in the case include Dana Gerson Rosenberg and Mindy Dara Gerson, the children of the deceased, and Sandra Gerson, the surviving spouse. The dispute arose after Donald Myron Gerson passed away intestate, meaning he did not leave a will. Sandra Gerson sought to take an elective share of the estate, which allows a surviving spouse to claim a portion of the deceased spouse's estate, regardless of what is stated in a will.
On March 5, 2015, Sandra Gerson had appointed her son, Zane Ullman, as her attorney-in-fact through a durable power of attorney. This document gave Ullman the authority to manage her property and financial affairs. After Donald's death on March 14, 2025, Sandra moved to take her elective share, but his children contested this motion, arguing that Ullman did not have the authority to act on her behalf in this context.
The probate court ruled in favor of Sandra Gerson, stating that it was in her best interest to take the elective share and authorized Ullman to file the election on her behalf. However, the decedent's children argued that the power of attorney did not provide Ullman with sufficient authority to make such a decision. They contended that an evidentiary hearing was necessary to determine what was in Sandra's best interest.
The trial court issued an order on October 1, 2025, granting Ullman's petition to exercise the right of election and affirming that it was in Sandra's best interest. The children of the deceased then appealed this decision, claiming that it determined the rights of interested parties regarding the estate.
In its ruling, the Third District Court of Appeal, led by Judge Bokor, found that the order was not final and therefore not appealable. The court stated, "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." The court emphasized that the order did not finalize the rights or obligations of the parties involved, as the election had not yet been invoked or ratified.
The court referenced a previous case, Jacobs v. Jacob, to support its conclusion that the order did not meet the criteria for finality. The court noted that the order lacked any words of finality, which would indicate that the judicial process was complete.
This ruling has implications for future probate cases in Florida, particularly regarding elective shares and the authority of attorneys-in-fact. It clarifies that orders like the one in this case do not automatically grant rights to parties involved in an estate dispute. Instead, such matters may require further proceedings to determine the final rights and obligations of the parties.
Going forward, this ruling could affect how surviving spouses and their representatives approach elective shares in probate cases. It underscores the importance of clear legal authority when making decisions regarding estate matters. The court's dismissal of the appeal does not prevent the parties from seeking further legal action in the future, but it does highlight the need for proper legal procedures to be followed.
As for what’s next, the parties may consider their options regarding further appeals or other legal actions. However, details were not available in the court filing regarding any related cases or potential next steps.