Also known as: general powers · general power of appointment
Written by attorneys · grounded in primary & secondary sources — see below
An authority granted to a donee permitting appointment of property to the donee, the donee's estate, the donee's creditors, or the creditors of the donee's estate. The power is presently exercisable unless the creating instrument imposes a requirement of consent by a trustee or adverse party or limits the trustee's exercise by an ascertainable standard.
Genevieve Gardner creates a trust naming her brother Gerald Gibson as trustee and beneficiary. The trust instrument grants Gerald the right to withdraw principal at any time for his own benefit without needing anyone else's consent. Because the power meets the definition of a presently exercisable general power of appointment, the trust assets are treated as part of Gerald's estate for creditor claims.
Gustavo Gutierrez transfers assets into a revocable inter vivos trust and retains the sole power to revoke or amend the trust at any time. Upon his death the retained power is classified as a general power of appointment. The trust assets are therefore included in his probate estate for purposes of his surviving spouse's elective share.
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Congress enacts a statute prohibiting possession of firearms in school zones. The statute is challenged as exceeding the federal government's enumerated powers. The Court holds that the law does not fall within any of Congress's general powers under the Commerce Clause because it regulates purely local, non-economic activity.
A city ordinance defines family to include only parents and their children. Gabriella Gomez lives with her grandson and his mother in violation of the ordinance. The Court concludes that the ordinance intrudes on protected family choices and exceeds the municipality's general power to standardize living arrangements.
Congress passes a statute creating a federal civil remedy for gender-motivated violence. The statute is defended as an exercise of Congress's general power under the Commerce Clause and Section Five of the Fourteenth Amendment. The Court holds that the provision exceeds those powers because it regulates noneconomic, intrastate conduct.
A decedent's widow releases a general power of appointment over trust assets. Federal tax authorities must determine whether the release affects the marital deduction. The Supreme Court holds that federal courts are not bound by a state trial court's characterization of the property interest created by the general power.
A general power permits appointment to the donee, the donee's estate, the donee's creditors, or creditors of the donee's estate. A nongeneral power restricts appointment to a narrower class that excludes the donee and those parties.
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A power of withdrawal is treated as a general power of appointment unless it is exercisable only by a trustee and limited by an ascertainable standard or exercisable only with the consent of the trustee or an adverse party.
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When a donee creates a trust for life with a reserved general power over the remainder and no other indestructible beneficial interests, creditors may reach the appointive property to the extent other assets are insufficient.
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A general residuary clause exercises a general power only if the power is exercisable in favor of the powerholder's estate and the creating instrument contains no effective gift in default of appointment, or if the will manifests an intention to include the appointive property.
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…which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government." Id. , at 195. In this passage, the Court merely was making the well understood point that the Constitution commits matters of "national" concern to Congress and leaves…