(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.
Two Spousal Privileges: Florida law recognizes two separate privileges between spouses. This statute, § 90.504, covers the Marital Communications Privilege. It should not be confused with the common law "spousal testimonial privilege," which prevents one spouse from being forced to testify against the other in a criminal case.
The Marital Communications Privilege: This privilege is designed to protect the privacy and trust within a marriage by keeping confidential communications private. Its key features are:
- What is Protected: It protects communications (oral or written) that were intended to be confidential and were made between the spouses *during* the marriage.
- Who Holds It: Both spouses hold the privilege. Either spouse can prevent the other from testifying about a confidential communication.
- Duration: This privilege lasts forever. It can be asserted even after the marriage has ended through divorce or death.
Exceptions (When There Is No Privilege):
The protection is not absolute. The privilege does not apply:
- In any lawsuit between the spouses (e.g., a divorce proceeding).
- In a criminal case where one spouse is charged with a crime against the other spouse or against a child of either spouse.
- In a criminal case where the defendant-spouse wants to introduce the communication as part of their own defense.
