26 June 1996 Internal T.I. 9616687 - WHETHER "SPOUSE" IS SEPARATED

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

Principal Issues:

Whether legally married separated individual has a "spouse".

Position:

Yes.

Reasons:

A married person has a "spouse" until one dies or a divorce is finalized.

								June 26, 1996

	WINNIPEG TAX SERVICES OFFICE		HEADQUARTERS
J. Purda						P. Spice
	Director						(613) 957-8953
	ATTENTION:  Ms Debbie Anderson
								961668

Registered Retirement Savings Plan ("RRSP")
Consequences of Separation to Legal Marriage

This is in reply to your memorandum of May 6, 1996, in which you ask us two questions concerning a contributor to, or annuitant of, an RRSP who is legally married but separated from his or her spouse. Your questions and our answers follow:

1. Can a separated individual purchase a spousal RRSP?

ANSWER

The definition of "retirement savings plan" in paragraph (b) of subsection 146(1) of the Income Tax Act (the "Act") refers to an arrangement under which an individual "or an individual's spouse" makes payments which will be used to provide a retirement income for the individual. Thus, at least with respect to the arrangements described in paragraph (b) of the definition, it is possible for an individual who is legally married but separated to open an RRSP for the spouse. Such payments to the arrangement may be the subject of a deduction to the extent they meet the conditions in subsection 146(5.1) of the Act.

Note that insured RRSPs as described in paragraph (a) of the definition can only be entered into by the annuitant; once opened, however, a spouse may contribute to it and claim a deduction in accordance with subsection 146(5.1).

2. If a deceased individual was separated at death, is the estranged spouse considered a spouse, or can the dependent children be considered to have received a refund of premiums?

ANSWER

The definition of "refund of premiums" in subsection 146(1) of the Act refers in paragraph (a) to any amount paid to a spouse and in paragraph (b) to any amount paid to the children or grandchildren "if the annuitant had no spouse at the time of the annuitant's death". An individual who is married but separated will have a "spouse" at the time of death, and therefore only the spouse will be eligible to receive a "refund of premiums" out of the RRSP.

Although the current version of Interpretation Bulletin IT-307 does not make reference to the marriage subsisting until the decree absolute, the law remains the same as far as we are aware.

for Director
Financial Industries Division
Income Tax Rulings and
Interpretations Directorate