Trenchard v. Gray, — So.2d —-, 2007 WL 837294 (Fla. 2d DCA Mar 21, 2007)
In Dempsey v. Dempsey (a 2005 opinion I wrote about here) the 2d DCA ruled on when elective share orders are subject to appeal. 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)).
Step one is a non-final, non-appealable order. Step two is an appealable order.
Based on the same rationale, the 2d DCA dismissed an appeal of a step-one elective share order in the linked-to opinion. The following excerpt from Judge Silberman’s concurring opinion does a good job of explaining – again – the 2d DCA’s approach to elective-share-order appeals:
Appellant Vicki Trenchard raises an issue regarding whether certain real property to which she claims ownership is subject to Appellee Marcia Gray’s claim to an elective share. Ms. Trenchard and William Gray, the decedent, owned the property as joint tenants with the right of survivorship. The trial court’s order finds that the decedent’s interest in the real property is subject to the elective estate. The order is consistent with the statutory requirement that the value of the decedent’s interest in the property must be taken into account to determine the elective estate. See § 732.2035, Fla. Stat. (2005).
The trial court has not determined any questions as to ownership of the property or whether the property itself may be used to satisfy the elective share claim. The court also has not resolved questions as to the amount of the elective share, the identification of assets that will be used to satisfy the elective share, the amount of the unsatisfied balance of the elective share, or the apportionment of the unsatisfied balance among the direct recipients of the remaining elective estate. See §§ 732.2075, 732.2085. Thus, I concur in the decision to dismiss this appeal because the trial court’s order is nonfinal and nonappealable. See Dempsey, 899 So.2d 1272.