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Does the Husband-Wife privilege apply when neither spouse is a party to the suit?

Chicago, IL |

For example, if the husband is only a witness to a suit, not an actual party, are communications between witness-husband and his wife privilege? Or does the privilege only apply when one of the spouse has an interest to the suit?

We are handling a medical malpractice lawsuit and seek to obtain deposition testimony from the daughter-in-law of the the plaintiff. When we asked her about specific conversation that she had with her husband (the son of the plaintiff in the lawsuit), Plaintiff's attorney raised the husband-wife privilege. Neither wife or husband are a party to the suit; they are simply witnesses.

I'm a law clerk; I appreciate everyone's input.

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Attorney answers 6


Hopefully you have an attorney for a medical malpractice action. That is not an area of law that lends itself to DIY, especially when the opponent is represented by counsel. The husband-wife privilege might be attacked, but not easily by a pro se litigant.

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Based on the nature of the testimony you can expect the plaintiff attorney to object and that will lead to a court hearing and ruling. Do not attempt to argue such an intricate legal position on your own. Hire an attrorney Good luckl.


That is a technical question that half the competent attorneys in your state would want to research before answering confidently. In most states the privilege is absolute, but can be waived.

I strongly advise you to get an attorney. Good luck.

Alan James Brinkmeier

Alan James Brinkmeier


I agree with your comment that an attorney should be hired. I must say that an attorney that is in court all the time knows the rules of evidence and the current state of the law on this inquiry so no hours of legal research would be billed off to the client. To do a legal brief, yes of course. But that would be legal advice which Avvo does not allow. Thanks for your contribution.


I agree with my colleagues

Expect to lose any med mal case without a lawyer.

Expect the privilege to be challenged.

Get yourself a lawyer of this litigation is important to you!

This answer posted on Avvo is for informational and educational purposes only. There is no attorney-client relationship created or formed and you should not rely on this as legal advice. The suggestion is made that if you wish to protect your rights, you consult with an attorney immediately.


Husband-wife privilege can apply, even in cases where they are not named parties. Whether or not that privilege can be attacked depends on a lot of factors, such as necessity, whether the other party (the spouse that made whatever statements you're looking for) may be deposed, etc. If her husband could be at all at risk in this case, the likelihood is that the privilege would apply, but from the scant facts posted, it would be difficult to discern if there is a valid way around the issue.

I presume you either have an attorney or are a lawyer yourself to ask such a question. If you are an attorney, I would get in contact with other attorneys who work in med mal in your area. Also, if you pay IICLE to get your CLE's, I believe there is a special CLE on the various privileges (doctor-patient, husband-wife, attorney-client, etc.) that you should be able to stream or buy. Getting an extra CLE credit or two can't hurt either.

If you are not an attorney, I strongly suggest either talking about this to the one you have retained, or, if you haven't retained one, retaining a lawyer immediately. Medical malpractice is an area that requires a lot of specialized knowledge and it will be very difficult to recover without an attorney.


Marital communications are privileged, if I remember the bar correctly.

This answer is intended as informational only, and does not constitute legal advice or form an attorney-client relationship between us.

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