Is it possible for spouses (or common-law partners), both of them over 65, to jointly create a trust which meets the s. 73(1.01)(c)(iii) conditions with a contribution of property jointly-owned by them; and is it possible for one or both of them to make subsequent contributions to the trust on a tax-deferred basis with property that is owned jointly by them, and other property that is owned individually?
CRA indicated that if a trust is created by the contribution of jointly owned property by an individual and that individual’s spouse or common-law partner, and no other person, the trust would be considered to be created by both individuals for the purpose of s. 73(1.01). Furthermore, as long as the trust was created by both individuals and nobody else, and the other conditions in ss. 73(1), (1.01), and (1.02) are met, a transfer of property to the trust after its creation by either spouse or common-law partner (or both spouses or partners) would be eligible for the s. 73(1) rollover.