Florida Bar Exam — Annotated Model Essay

FLORIDA — ANNOTATED MODEL ESSAY: CONSTITUTIONAL LAW (HOMESTEAD)

I chose Florida Constitutional Law, focused on the homestead provisions of Article X, section 4 — the most distinctively-Florida, most-tested own-law doctrine. A student who only studied general property and creditor law would badly mishandle homestead's creditor exemption and, especially, its restrictions on devise. Black text is your timed answer; the gold boxes flag where Florida departs from the general rule.

Model Answer — with annotations

Black text is the answer you could write under timed conditions. The gold boxes explain why each move earns points and flag where Florida law departs from the general rule.

I. Is the property "homestead"? — the threshold question

Florida's homestead protections arise under Article X, section 4 of the Florida Constitution and apply only if the property qualifies as homestead. The owner must be a natural person who resides on the property and makes it her permanent residence (or the residence of her family), and the property must fall within the constitutional size limits: up to one-half acre if located within a municipality, or up to 160 acres if located outside a municipality. Dolores resided on the property as her permanent home, it is a half-acre lot inside the Orlando city limits, and it is owned by a natural person. The property therefore qualifies as homestead and both the creditor-exemption and devise-restriction protections apply.

II. The creditor exemption — Apex cannot force a sale

The Florida Constitution exempts homestead from forced sale and from the lien of any judgment, except for three enumerated categories: (1) the payment of taxes and assessments on the property; (2) obligations contracted for the purchase, improvement, or repair of the property (e.g., a purchase-money mortgage or a construction lien); and (3) obligations contracted for house, field, or other labor performed on the property. A general unsecured judgment does not fall within any exception. Critically, unlike the homestead exemptions of most states, Florida's exemption has no dollar cap — the protection extends to the full value of the qualifying homestead regardless of how valuable the home is.

Apex's claim is an unsecured credit-card judgment — not taxes, not a purchase/improvement/repair obligation, and not a labor obligation on the property. It is therefore outside all three exceptions. Apex's judgment does not even attach as a lien to the homestead, and Apex cannot force a sale. The answer to call (1) is no.

III. The devise restriction — the devise to Rita is invalid

Florida's homestead clause separately restricts how homestead may be devised. The owner may not devise the homestead if she is survived by a spouse or a minor child. Dolores was survived by her husband Carl (a spouse) and Tim (a minor child). The attempted devise of the house to her sister Rita is therefore invalid; an owner with a surviving spouse or minor child simply cannot give the homestead away by will to a third party.

IV. Who takes the house — the constitutional default descent

Because the devise fails, the homestead passes by the constitutional default. When the decedent is survived by a spouse and one or more descendants, the surviving spouse takes a life estate in the homestead, with a vested remainder in the descendants in being at the time of the owner's death (per stirpes). Modern Florida law also gives the surviving spouse the option to elect, in lieu of the life estate, an undivided one-half tenancy-in-common interest, with the other one-half passing to the descendants — but the default if no election is made is the life-estate/remainder structure.

Applying that here: Carl, the surviving spouse, takes a life estate in the homestead (or may elect a one-half tenancy in common). Tim, Dolores's surviving descendant, takes the vested remainder (or the other one-half if Carl elects). Rita takes nothing. The house passes outside the will to Carl and Tim under the constitutional homestead descent.

V. Conclusion

(1) No — the half-acre in-city home is exempt homestead, the unsecured judgment fits none of the three constitutional exceptions, and Apex cannot force a sale or even create a lien. (2) The devise to Rita is invalid because Dolores left a surviving spouse and a minor child; the homestead instead descends to Carl (life estate, subject to his election) with a vested remainder in Tim.