Divorced, and no longer a beneficiary: what "spouse" means in a trust deed

If your trust deed names "the spouse" of a beneficiary as a beneficiary, a divorce may end your interest in the trust, even if you founded it. The Western Cape High Court held exactly that on 19 October 2026 in K.J.P v G.G.M.P NO and Others [2026] ZAWCHC 611.

The applicant set up the family trust during her marriage. After the divorce she asked the court to confirm she was still a beneficiary. The court said no.

What happened

The trust, a property investment trust, was formed in 2006. The applicant was its founder, and her husband was a trustee and a beneficiary. She was never named as a beneficiary in her own right.

Instead she relied on clause 1.1.8 of the trust deed. It defined the beneficiaries to include "the spouse of each such beneficiary together with the children of each such beneficiary". The deed did not define "spouse".

The couple divorced in February 2023. The trust had never made a distribution. The applicant then applied for an order declaring that she remained a beneficiary.

How the court read "spouse"

Slingers J held that "spouse" means whoever is the beneficiary's spouse from time to time, not whoever was the spouse when the deed was signed. A former spouse is not included.

The court interpreted the trust deed the way South African courts read any contract: the ordinary meaning of the words, in context, with regard to the deed's purpose (the Endumeni approach). Three things decided it.

The plain words. Nothing in clause 1.1.8 points to a particular person or to a former spouse. Had the founder meant herself, she could have named herself or written "current spouse".

The deed looked forward. Both sides accepted that general terms such as "children" were used so the deed would cover people as they came and went over time. "Spouse" in the same clause works the same way.

Her own case. Her affidavit said she became a beneficiary because she was married to the first respondent. As the court put it, "When that marriage ended, so did her entitlement to the benefits of the property because she was no longer a spouse."

An offer of 16.67% her ex-husband had made during accrual settlement talks did not help her. He made it in his personal capacity, not as trustee, and it could not bind the trust.

What this means for you

Being the founder gives you no rights. Founding a trust does not make you a beneficiary. Once the assets are in the trust, your position depends entirely on the deed's wording.

"Spouse" usually follows the marriage. If you benefit only as someone's spouse, plan on that interest ending with a divorce. If that is not what you intend, the deed must say so expressly.

A new spouse may come in. The same reasoning means a later spouse of the beneficiary could qualify. Founders who want to prevent that need clear drafting.

Trustees need certainty. Undefined terms invite litigation. Trustees should know exactly who the beneficiaries are before they distribute anything.

Check your trust deed

1. Are you named as a beneficiary in your own right, or only as someone's "spouse"?

2. Is "spouse" defined? Does it mean the spouse at signing, the current spouse, or include a former spouse?

3. Does the deed say what happens to a spouse-beneficiary on divorce or death?

4. If you are married out of community with accrual, has the trust been considered in your accrual planning?

5. Can the deed be amended, and who must consent: the founder, the trustees, or the beneficiaries?

If the wording does not match what you intended, it can often be amended while everyone still agrees, which is usually long before a divorce. Lawvero prepares trust deed amendments and the Master's forms. Have your trust deed reviewed at lawvero.co.za/products/trusts/update.

Frequently asked questions

Does divorce end my interest in a family trust? If you benefit only as a beneficiary's "spouse", it very likely does. In this case the court read "spouse" as the current spouse, and the outcome will always turn on the wording of your own deed.

I founded the trust. Doesn't that protect me? No. A founder has no rights to trust assets unless the deed makes them a beneficiary or gives them specific powers.

Can my ex-spouse's settlement offer bind the trust? Not if it was made in their personal capacity. Only the trustees, acting together under the deed, can bind the trust.

Which case is this? K.J.P v G.G.M.P NO and Others (17622/2024) [2026] ZAWCHC 611 (19 October 2026).

Sources

K.J.P v G.G.M.P NO: full judgment on SAFLII (opens in a new tab)

Family Laws South Africa: case commentary (opens in a new tab)

Lawvero provides document preparation services and does not provide legal advice. This article is general information, not advice on your specific trust or divorce.

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