marital privilege

Primary tabs

Marital privilege, also known as spousal privilege, is recognized by the law of evidence and the Supreme Court to protect private spousal communications and prevent any testimony against a spouse from being used in judicial proceedings. Marital privileges comprise of two distinct privileges: marital communications privilege and spousal testimonial privilege. Usually, common law governs the claim of privilege unless it’s from a civil diversity case where the substantive law of the state applies (see: Fed. R. Evid. 501).

Marital communications privilege (Confidential marital communications)

In both civil and criminal cases, communications made between spouses during the marriage are privileged if the communication is intended to be private and made in reliance on the sanctity of marriage. Even if the marriage is terminated because of divorce or the death of one spouse, this privilege could be asserted. 

In the majority of jurisdictions, the privilege is held by both spouses. Any party can assert the privilege by refusing to testify spousal privileged communications or by preventing the other party from doing so at any time. However, some states rule that only communicating spouses can assert the privilege. The burden of proof is on the opposing party, who should prove that particular words and acts are not intended as private communication.

Spousal testimonial privilege (Spousal immunity)

In criminal cases, the spouse of a criminal defendant who is called as a witness by the prosecution may choose to testify but cannot be compelled to testify against his or her spouse about events that occurred before and during the marriage. While the privilege can be waived by the witness spouse, even if the defendant spouse objects. 

In a minority of jurisdictions, the defendant spouse holds the privilege to prevent the witness spouse from testifying, regardless of the witness spouse’s willingness.

Compared to the marital communications privilege, spousal testimonial privilege is only acceptable during a valid marriage. Once the marriage ends, the right of privilege expires. But it not only applies to events that happened during the marriage but also applies to events that occurred before the marriage.


Marital privilege does not apply if 1) the private communication is revealed to third parties, 2) one spouse is suing the other (e.g., divorce), or 3) when one spouse is charged with a crime against the other or their children (e.g., domestic violence or abuse). 

A judge must decide whether to recognize an exception to the marital privilege by giving judicial notice of legislative facts, which are policy facts related to legal reasoning and the lawmaking process. Fed. R. Evid. 201

When Congress codified spousal immunity, they intended it to be a "rule of privilege covered by this rule [Rule 501] and not by rule 601 of the competency of witnesses," as stated in the Notes of Committee on the Judiciary, Senate Report No. 93–1277 for Rule 501. 

[Last updated in March of 2022 by the Wex Definitions Team]