When does spousal privilege apply?

The spousal communications privilege or confidences privilege is a form of privileged communication that protects the contents of confidential communications between spouses during their marriage from testimonial disclosure. The privilege applies in civil and criminal cases.

Both the witness-spouse and the party-spouse hold the spousal communications privilege, so either may invoke it to prevent the other from testifying about a confidential communication made during marriage.

The communications privilege begins on marriage, and cannot be invoked to protect confidential communications between now-married spouses that occurred prior to their marriage. Unlike testimonial privilege, the communications privilege survives the end of a marriage, and may be asserted by a spouse to protect confidential communications that were made during the marriage—even after divorce or death.

The spousal communications privilege may not be invoked if the spouses are suing each other or each other's estates in a civil case; if one of the spouses has initiated a criminal proceeding against the other; or in a competency proceeding regarding one of the spouses. These three scenarios are identical to the limitations which also apply to limit the spousal testimonial privilege. Two further scenarios apply to defeat the attachment of the spousal communications privilege: if the confidential communication was made in order to plan or commit crime or fraud, or if a defendant-spouse wishes, in a criminal trial, to testify in her own defense, about a confidential marital communication. In these five cases, a court will not allow either spouse to assert the privilege to block the testimony.