​Recently, the Canada Revenue Agency's ("CRA's") historic administrative position permitting a spouse to claim charitable donation tax credits for a donation made by his or her spouse was legislated into theIncome Tax Act (Canada) with the passage of Bill C-43, which received Royal Assent on December 16, 2014.  It has also been the CRA's administrative practice (see e.g. CRA document no. 2010-0372621E5) where one spouse has died to permit the surviving spouse and the executor of the deceased spouse's estate to decide between them whether a charitable donation tax credit for a gift made by the deceased spouse's will shall be claimed by the executor on one of the deceased spouse's terminal return or by the surviving spouse.

Bill C-43 also introduced a provision that deems a gift by will to have been made by an individual's estate, rather than by the deceased individual immediately before his or her death as was previously the case.  In certain circumstances (i.e., where the deceased individual's estate is a graduated rate estate), the executor may choose to use the charitable donation tax credit on either the estate's tax return or one of the deceased spouse's tax returns.  In a recent technical interpretation, CRA document no. 2014-0555551E5 -- "Spousal sharing of charitable gifts" (January 27, 2015), the CRA was asked whether this new deeming provision overrides the CRA's administrative practice of permitting a surviving spouse to claim a charitable donation tax credit for a gift made by the deceased spouse's will.   The CRA responded that the definition of "total charitable gifts", which sets out what gifts can be claimed by an individual on his or her tax return, does not include gifts made by an individual's spouse's graduated rate estate.  As a result, the CRA indicated that its administrative practice of allowing a surviving spouse to claim a charitable donation tax credit for a gift made by the deceased spouse's will shall no longer apply in respect of deaths occurring after 2015.