A spouse cannot be forced to reveal what you told them in confidence during your marriage — but that protection is narrower than most people think, and it does not cover everything a husband or wife might say on a witness stand.
What Is the Marital Privilege Under Florida Law?
Section 90.504, Florida Statutes, creates what is commonly called the husband-wife privilege. Under the statute, a spouse has a privilege during and after the marriage to refuse to disclose, and to prevent the other spouse from disclosing, communications that were intended to be made in confidence between the spouses while they were husband and wife. Either spouse can claim the privilege. The court also presumes that a spouse (or a guardian or conservator of a spouse) has the authority to claim it unless there is evidence to the contrary.
This is an evidentiary rule, not a constitutional right, and it applies in both civil and criminal cases. Also, it is important to separate this privilege from a related but different concept — spousal testimonial immunity, which in some jurisdictions lets a spouse refuse to testify at all against the other. Florida’s rule is narrower than that broader immunity concept. Section 90.504 only protects the content of confidential marital communications. It does not give a spouse a blanket right to refuse to take the stand and answer every question.
What Counts as a “Confidential Communication” Between Spouses?
The privilege only reaches communications the spouses intended to keep private. This is so because the statute is built around the expectation of confidentiality, not around the marital relationship itself. A conversation between spouses in the privacy of their home, with no one else present, typically qualifies. A conversation held in front of a third party — a friend, a relative, a police officer, or anyone else who was not meant to be part of the confidence — is not protected, because the spouses did not intend it to stay confidential.
You should also account for jailhouse and recorded phone calls. Calls made from jail are typically recorded, and inmates are routinely warned, verbally and in writing, that the calls are monitored. Florida courts have repeatedly held that communications made with knowledge that a third party (the facility, or law enforcement) is listening are not “confidential” in the first place, so the privilege usually will not save a recorded jail call between spouses. Text messages and emails can qualify as confidential communications if the surrounding circumstances show the spouses intended them to remain private, but anything shared knowingly with a third party, forwarded, or left where others could see it undercuts that intent.
Also, the privilege only protects communications — not independent observations. If a spouse witnessed conduct rather than being told about it in a private conversation, that observation is not a “communication” and generally falls outside section 90.504 entirely.
When Does the Privilege Not Apply? The Statutory Exceptions
Section 90.504(3) lists exceptions where the privilege cannot be claimed by either spouse. First, there is no privilege in a proceeding brought by or on behalf of one spouse against the other — for example, a civil dispute between spouses. Second, and most significant in the criminal context, there is no privilege in a criminal proceeding in which one spouse is charged with a crime committed against the person or property of the other spouse, or against the person or property of a child of either spouse. This exception covers cases like domestic battery, aggravated assault between spouses, and offenses against a shared or step-child — the communications the alleged victim-spouse might otherwise want to keep confidential become admissible because the crime charged is against that spouse or the child. Third, the privilege does not apply in a criminal proceeding where the communication is offered into evidence by the defendant-spouse — in other words, a defendant can waive the privilege and introduce his or her own confidential marital communications if it helps the defense, even if the other spouse would rather it stay private.
Note what the statute does not say: it does not create an exception simply because the crime is serious, or because the State wants the testimony, or because the spouses are estranged but still legally married. Absent one of these three enumerated exceptions, a validly married spouse can still assert the privilege even in a high-stakes felony case, provided the communication was genuinely confidential.
Does It Matter If We Are Separated, Divorced, or Not Legally Married?
The privilege requires a valid marriage — common-law relationships (which Florida no longer recognizes for marriages entered into after January 1, 1968) and live-in partners without a marriage license do not qualify, regardless of how long the couple has been together. Also, the privilege only protects communications made while the couple was married. A confidential statement made before the wedding, or after a final divorce decree, is not covered.
On the other hand, once a communication is made during a valid marriage, the privilege survives that marriage. This is important because you may run into the scenario where a couple divorces, and the State later tries to call the ex-spouse to testify about something said years earlier while they were still married. The privilege can still be claimed for that in-marriage communication even though the marriage has since ended — and it also survives the death of either spouse, meaning a widow or widower (or their estate) can still assert it.
Can the Privilege Be Waived, and What Should You Do If This Comes Up?
Yes. The privilege belongs to the spouse who made the communication (or, in some circumstances, either spouse), and like most evidentiary privileges it can be waived. Disclosing the communication to a third party, failing to object when the testimony is offered, or otherwise acting inconsistently with an intent to keep it confidential can all result in waiver. This is why timing matters — the privilege has to be affirmatively asserted, typically through a motion in limine or a timely objection when the testifying spouse is called, rather than raised for the first time after the testimony has already come in.
If you are facing charges and the State intends to call your spouse, or your spouse’s testimony could include something you told them in confidence, you should not assume the privilege will apply automatically or that it covers everything your spouse might say. Whether a given statement was truly “confidential,” whether it was made during a valid marriage, and whether one of the three statutory exceptions applies are all fact-specific questions that need to be litigated before trial, not discovered for the first time when your spouse is on the stand.
- Section 90.504, Florida Statutes — husband-wife privilege
Legally reviewed by Tonmiel Rodriguez · Last reviewed July 2026
Tonmiel Rodriguez is Board Certified in Criminal Trial Law by The Florida Bar and represents clients throughout Polk, Highlands, Hardee, Osceola, and Hillsborough Counties. If you are facing criminal charges and have questions about what your spouse can or cannot be forced to testify about, call The Rodriguez Law Office at (863) 774-4556.