Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)).

In this case, Lee County Circuit Court Judge G. Keith Cary entered an order finding that the decedent’s widow was entitled to the elective share. The Personal Representative of the estate then appealed before the probate court ruled on step two in the elective share process. On its own motion, the Second DCA directed the Personal Representative to show cause why its appeal should not be dismissed because the order on appeal was a non-final, non-appealable order. The Second DCA then dismissed the appeal holding that step one in the elective share determination process is administrative and procedural, which means it’s not appealable. Step two in the elective share determination process actually affects specific assets, thus making it final and appealable. The Second DCA also noted that while step one in the elective share determination process is not one of the specifically designated adversary proceedings listed in Florida Probate Rule 5.025(a), step two is.