Also known as: interspousal immunities · inter-spousal immunity · spousal immunity · interspousal tort immunity
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A common-law doctrine that barred one spouse from bringing a tort action against the other. The doctrine rested on the view that spouses formed a single legal entity and that litigation would disrupt marital harmony or invite collusion.
A common-law doctrine that barred one spouse from bringing a tort action against the other. The doctrine rested on the view that spouses formed a single legal entity and that litigation would disrupt marital harmony or invite collusion.
Wisconsin domiciliaries Isaiah Ishikawa and his wife are injured in a California car accident. She sues him in Wisconsin tort for negligence. California recognizes interspousal immunity while Wisconsin does not. The court applies Wisconsin law as the law of the marital domicile and permits the suit to proceed.
An evidentiary privilege that prevents one spouse from being compelled to give adverse testimony against the other in a criminal proceeding. In federal court the privilege belongs solely to the witness spouse, who may choose to testify or refuse.
Federal prosecutors subpoena Imani Idowu to testify against her husband Idris Ives in an insider-trading trial. Imani states she is willing to appear. Idris moves to quash the subpoena on spousal-immunity grounds. The court overrules the motion because the privilege belongs to Imani alone and she may choose to testify.
An evidentiary privilege that prevents one spouse from being compelled to give adverse testimony against the other in a criminal proceeding. In federal court the privilege belongs solely to the witness spouse, who may choose to testify or refuse.
Each sense below has its own examples, sources, and questions.
An Oklahoma plaintiff injured in Texas sues her husband in Oklahoma court. Texas law would bar the suit under interspousal immunity. Oklahoma has abolished the doctrine. The court applies Oklahoma law and allows the tort action to continue.
A California employee injured by her husband's negligent driving sues him for damages. At the time of the accident California still recognized interspousal immunity for negligent torts. The court applies the recently announced abrogation rule and permits the negligence claim to go forward.
No. The large majority of states have abolished the doctrine for both intentional and negligent torts. A few states retain limited versions, but the trend has been wholesale abrogation.
Many courts treat the issue as one of family-law capacity rather than tort liability. They therefore apply the law of the spouses' marital domicile instead of the place of injury.
In a state prosecution Ira Irving is charged with arson. Prosecutors call his wife Irene Ingalls, who is willing to testify about pre-marriage threats. Ira objects. Because the case is in state court the privilege belongs to the party spouse, so Ira may prevent Irene from testifying even though she wishes to cooperate.
The privilege belongs solely to the witness spouse. That spouse decides whether to testify against the defendant spouse and cannot be compelled to do so. The defendant spouse has no power to block the testimony.
No. The privilege against adverse testimony may be invoked only while a valid marriage exists. Once the marriage is dissolved the privilege disappears, although the separate marital-communications privilege may survive divorce.
Yes. Once a valid marriage exists the privilege may be asserted even as to matters that took place before the marriage.
…for loss of consortium ( Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d at pp. 389-404); and abrogated the rule of interspousal immunity for negligent torts. ( Klein v. Klein (1962) 58 Cal.2d 692, 697-699 [26 Cal. Rptr. 102, 376 P.2d 70].) Every one of these landmark decisions required a difficult choice among competing…