§ 90.504, Fla. Stat. — Husband-Wife (Spousal) Privilege
Plain English
Florida recognizes a spousal privilege — but it’s narrower than most people think. It protects confidential communications made between spouses during the marriage, and it survives during and after the marriage. Either spouse can claim it. The key is what it is and isn’t: this is a communications privilege — private things said between husband and wife — not a blanket rule that a spouse can refuse to testify at all. And it has sharp exceptions: it does not apply in a case between the spouses, in a criminal case where one spouse is charged with a crime against the other spouse or a child of either, or where the defendant-spouse is the one offering the communication.
From the Courtroom
People assume a spouse can simply refuse to testify against their partner. Florida’s privilege is narrower — it protects confidential communications, not the fact of testimony — and it collapses entirely when the alleged crime was against the other spouse or a child of either. That “child of either” exception catches a lot of defendants off guard.
Key Points & Authority
- § 90.504(1), Fla. Stat. — Protects confidential interspousal communications, during and after the marriage; either spouse may claim it.
- Exceptions (§ 90.504(3)): proceedings between the spouses; criminal cases charging a crime against the other spouse or a child of either; and where the defendant-spouse offers the communication.
- Federal contrast: federal common law (Fed. R. Evid. 501) recognizes two marital privileges — confidential communications and adverse spousal testimony — while Florida codifies only the communications privilege here.
Federal Parallel
There is no numbered federal counterpart. Under Fed. R. Evid. 501, federal courts recognize two distinct marital privileges by common law — one for confidential communications and a separate adverse-spousal-testimony privilege — whereas Florida’s § 90.504 codifies the confidential-communications privilege only.
About this rule walkthrough
Part of The Evidence Code, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
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Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.
(3) There is no privilege under this section: (a) In a proceeding brought by or on behalf of one spouse against the other spouse. (b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either. (c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Section 90.504 protects confidential communications between spouses, during and after the marriage, claimable by either spouse — but not in proceedings between the spouses, in crimes against the other spouse or a child of either, or where the defendant-spouse offers the communication.