Spousal privilege, also known as marital privilege and husband-wife privilege, includes two types of privileges: the spousal communications privilege and the spousal testimonial privilege.
The spousal communications privilege applies in civil and criminal cases. It shields communications made in confidence during a valid marriage. The purpose of the privilege is to provide assurance that all private statements between spouses will be free from public exposure. In order to invoke a spousal communications privilege, the party must establish that (a) at the time of the communication, the spouses were in a valid marriage; (b) the communications were intended to convey information between spouses, and neither spouse has disclosed the communication to a third party; and (c) the communications were intended to be confidential. The spousal communications privilege generally survives the end of a marriage, but communications made after the marriage ends are not protected. This privilege does not apply if the spouses are suing each other in a civil case or one of the spouses initiates a criminal proceeding against the other.
The spousal testimonial privilege precludes one spouse from testifying against the other spouse in criminal or related proceedings. Either spouse can invoke the privilege to prevent the testimony. This privilege does not survive the dissolution of the marital relationship. If the spouses are suing each other in a civil case, or if one of the spouses initiates a criminal proceeding against the other spousal, spousal testimonial privilege does not apply.
[Last updated in April of 2021 by the Wex Definitions Team]