Introduction

Most people assume that once they are married, their spouse can either testify for them or against them like any other witness. That assumption is wrong—sometimes dramatically so. Texas law recognizes spousal privileges that can prevent testimony entirely, even when that testimony would otherwise be highly relevant.

These privileges are not just theoretical—they arise in family law disputes, probate fights, fraud cases, and even civil litigation involving business dealings between spouses. If misunderstood, they can derail litigation strategy at the worst possible moment.

The Two Distinct Spousal Privileges in Texas

Texas law recognizes two separate spousal privileges, codified in the Texas Rules of Evidence:

1. Spousal Testimonial Privilege (Criminal Cases Only)

Under Texas Rule of Evidence 504(a):

“In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state.”

This means:

• The witness-spouse controls the privilege
• The spouse cannot be forced to testify
• Even if the defendant wants the testimony, the witness-spouse can refuse

👉 This is a one-way shield—it protects the spouse from being compelled, not the defendant from testimony.

2. Confidential Communications Privilege (Civil and Criminal Cases)

This is where things get more interesting—and more relevant to your practice.

Under Texas Rule of Evidence 504(b):

“A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication made to the person’s spouse while they were married.”

Key takeaways:

• Applies in civil AND criminal cases
• Covers private communications between spouses
• Either spouse can assert it
• It survives divorce

What Counts as a “Confidential Communication”?

The rule further clarifies:

A communication is confidential if it is made privately and not intended for disclosure to any other person.

This means:

✔ Protected:

• Private conversations at home
• Text messages between spouses
• Emails discussing finances or litigation strategy

❌ Not protected:

• Statements made in front of third parties
• Business communications involving outsiders
• Conversations intended to be shared

Why This Matters in Real Cases

This doctrine shows up in ways that catch lawyers off guard:

1. Divorce and Asset Tracing

Let’s say:

• Husband tells wife he moved money offshore
• Wife later wants to testify about it

👉 That testimony may be excludedif it was a confidential marital communication.

2. Fraud and Business Litigation

If spouses:

• Discuss fraudulent transfers
• Coordinate financial maneuvers

Those communications may be shielded, even in civil fraud cases.

3. Probate Disputes

In will contests or heirship fights:

• A spouse may try to testify about statements made by the decedent
• The privilege may block key evidence

Major Exceptions You Need to Know

Texas does not allow the privilege to be abused in certain situations.

Exception 1: Crime Against Spouse or Household Member

Under Rule 504:

There is no privilege in a proceeding in which one spouse is charged with a crime against the other spouse or a member of the household.

Exception 2: Joint Participation in Crime or Fraud

If spouses are co-conspirators, courts may refuse to apply the privilege.

This aligns conceptually with the crime-fraud exceptionseen in other privilege doctrines.

Exception 3: Lack of Confidentiality

If the communication:

• Was shared with third parties
• Was not intended to be private

👉 The privilege disappears.

Strategic Considerations for Texas Lawyers

This is where the doctrine becomes powerful in practice:

1. Discovery Strategy

• Don’t assume you can obtain spousal communications
• Anticipate privilege objections early

2. Witness Preparation

• A spouse may refuse entirely (criminal cases)
• Or selectively block communications (civil cases)

3. Evidence Planning

• Build your case without relying solely on spousal testimony
• Use:
• Financial records
• Third-party witnesses
• Documentary evidence

Common Mistake: Assuming Divorce Waives the Privilege

It does not.

Even after divorce:

• Communications made during the marriage remain protected
• The privilege continues indefinitely

This catches people off guard—especially in post-divorce litigation.

Why This Doctrine Is So Dangerous

Spousal privilege sits at the intersection of:

• Evidence law
• Family law
• Litigation strategy

And it has a unique characteristic:

👉 It can make highly relevant, truthful evidence completely inadmissible.

That is rare—and powerful.

Final Thoughts

The spousal privilege is one of those doctrines that seems almost outdated—until it suddenly controls the outcome of a case.

For Texas practitioners, especially in family law, probate, and business disputes, understanding its contours is essential. If you ignore it, you risk building a case on evidence you may never be allowed to use.

At David C. Barsalou, Attorney at Law, PLLC, we help clients navigate business, family, tax, estate planning, and real estate matters ranging from document drafting to litigation with clarity and confidence. If you’d like guidance on your situation, schedule a consultation today. Call us at (713) 397-4678, email barsalou.law@gmail.com, or reach us through our Contact Page. We’re here to help you take the next step.