Wisconsin Statutes
Wis. Stat. § 905.05 (2026)
Husband-wife and domestic partner privilege
✓ current as of July 2026
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905.05(1)(1) General rule of privilege. A person has a privilege to prevent the person’s spouse or former spouse or domestic partner or former domestic partner from testifying against the person as to any private communication by one to the other made during their marriage or domestic partnership. As used in this section, “domestic partner” means a domestic partner under ch. 770.
905.05(2)(2) Who may claim the privilege. The privilege may be claimed by the person or by the spouse or domestic partner on the person’s behalf. The authority of the spouse or domestic partner to do so is presumed in the absence of evidence to the contrary.
905.05(3)(a)(a) If both spouses or former spouses or domestic partners or former domestic partners are parties to the action.
905.05(3)(b)(b) In proceedings in which one spouse or former spouse or domestic partner or former domestic partner is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.
905.05(3)(c)(c) In proceedings in which a spouse or former spouse or domestic partner or former domestic partner is charged with a crime of pandering or prostitution.
905.05(3)(d)(d) If one spouse or former spouse or domestic partner or former domestic partner has acted as the agent of the other and the private communication relates to matters within the scope of the agency.
905.05 Cross-referenceCross-reference: As to testimony of husband and wife in paternity action regarding child born in wedlock, see s. 891.39.
905.05 AnnotationA wife’s testimony as to statements made by her husband was admissible when the statements were made in the presence of two witnesses. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970).
905.05 AnnotationSpouses can be compelled to testify as to whether the other was working or collecting unemployment insurance, since such facts are known to third persons. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777 (1970).
905.05 AnnotationA wife’s observation, without her husband’s knowledge, of her husband’s criminal act committed on a public street was neither a “communication” nor “private” within the meaning of sub. (1). State v. Sabin, 79 Wis. 2d 302, 255 N.W.2d 320 (1977).
905.05 Annotation“Child” under sub. (3) (b) includes a foster child. State v. Michels, 141 Wis. 2d 81, 414 N.W.2d 311 (Ct. App. 1987).
905.05 AnnotationThe privilege under sub. (1) belongs to the person against whom testimony is being offered. While an accused may invoke the privilege to prevent his or her spouse from testifying against him or her, the witness spouse may not invoke it to prevent his or her own testimony. Umhoefer v. Police & Fire Commission, 2002 WI App 217, 257 Wis. 2d. 539, 652 N.W.2d 412, 01-3468.
905.05 AnnotationUnder sub. (3) (b), it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. State v. Richard G.B., 2003 WI App 13, 259 Wis. 2d 730, 656 N.W.2d 469, 02-1302.
905.05 AnnotationWhen all outgoing telephone calls made by inmates of a jail were recorded and that policy was disclosed to all inmates, the defendant knowingly exposed the content of the call to a third party. That constituted a waiver of any marital privilege. State v. Eison, 2011 WI App 52, 332 Wis. 2d 331, 797 N.W.2d 890, 10-0909.
905.05 AnnotationThe fact that the defendant was untruthful in his statements to his wife was not an exception to the marital privilege. State v. Eison, 2011 WI App 52, 332 Wis. 2d 331, 797 N.W.2d 890, 10-0909.
Notes of Decisions
Cited in 26
cases (5 in the last 5 years), 1976–2025 · leading case: State v. Richard G.B., 2003 WI App 13 (Wis. Ct. App. 2002).
State v. Richard G.B., 2003 WI App 13 (Wis. Ct. App. 2002). “Richard contends the trial court incorrectly interpreted Wis. Stat. § 905.05 (3)(b), an exception to the husband-wife privilege, and allowed his wife to testify against him in spite of his invocation of the privilege.”
State v. Schmidt, 2016 WI App 45 (Wis. Ct. App. 2016). “Second, he claims his statement to Stephanie that he would "like to shoot [Rose]" was inadmissible as a privileged private communication to a spouse under Wis. Stat. § 905.05 (1). Finally, Schmidt argues the circuit court erroneously prevented him from presenting expert…”
State v. Giese, 2014 WI App 92 (Wis. Ct. App. 2014). “05, and does not render inadmissible the deputy's observation of Giese's wife at the scene of the crash or her statement that she went to that location after getting a phone call.”
State v. Eison, 2011 WI App 52 (Wis. Ct. App. 2011). “Eison appeals from a judgment of conviction and an order denying his motion for a new trial based on Eison's claim that "other acts" evidence was erroneously admitted concerning his arrest and his conduct related thereto, and that testimony by his former wife was admitted in…”
State v. Michels, 414 N.W.2d 311 (Wis. Ct. App. 1987). “We conclude that, under the totality of the circumstances, Michels’ statement was voluntary. Husband-Wife Privilege Michels argues that the trial court erroneously admitted the testimony of Gisela in violation of the husband-wife privilege.”
State v. Christian, 841 A.2d 1158 (Conn. 2004). “Code § 57-3-4 (Michie 1997); Wis. Stat. § 905.05 (2001-2002); Wyo. Stat.”
Umhoefer v. Police & Fire Comm'n of the City of Mequon, 2002 WI App 217 (Wis. Ct. App. 2002). “" A discussion of spousal privilege, as set forth in Wis. Stat. § 905.05 (1999-2000), 2 ensued.”
United States v. James Montgomery, United States of Am. v. Mary O'COnnOr, 384 F.3d 1050 (9th Cir. 2004). “Code § 57-3-4; Wis. Stat. § 905.05 ; Curran v. Pasek, 886 P.”
Muetze v. State, 243 N.W.2d 393 (Wis. 1976). “Section 905.05, Stats. .1973, preserves the marital privilege.”
Brown v. State, 753 A.2d 84 (Md. 2000). “060 (1998); Wis. Stat. Ann. § 905.05 (1) (West 1993); Wyo.”
State v. Johnston, 394 N.W.2d 915 (Wis. Ct. App. 1986). “He also contends that his wife’s testimony should have been excluded because it related to a private marital communication protected under sec. 905.05, Stats. We disagree and affirm the judgment.”
State v. Sarinske, 280 N.W.2d 725 (Wis. 1979). “Defendant, next takes issue with the testimony by Sandra Sarinske concerning his tearing the phone off the wall, claiming that her testimony violated the defendant’s marital privilege set forth in sec.”
— Wis. Stat. § 905.05(1) — 9 cases
State v. Sarinske, 280 N.W.2d 725 (Wis. 1979). “Defendant, next takes issue with the testimony by Sandra Sarinske concerning his tearing the phone off the wall, claiming that her testimony violated the defendant’s marital privilege set forth in sec.”
State v. Johnston, 394 N.W.2d 915 (Wis. Ct. App. 1986). “He also contends that his wife’s testimony should have been excluded because it related to a private marital communication protected under sec. 905.05, Stats. We disagree and affirm the judgment.”
State v. Dalton, 298 N.W.2d 398 (Wis. Ct. App. 1980).
State v. Sabin, 255 N.W.2d 320 (Wis. 1977).
Ollman v. Wisconsin Health Care Liab. Ins. Plan, 505 N.W.2d 399 (Wis. Ct. App. 1993).
— Wis. Stat. § 905.05(2) — 1 case
Umhoefer v. Police & Fire Com'n, 2002 WI App 217 (Wis. Ct. App. 2002).
— Wis. Stat. § 905.05(3) — 1 case
State v. Eison, 2011 WI App 52 (Wis. Ct. App. 2011). “Eison appeals from a judgment of conviction and an order denying his motion for a new trial based on Eison's claim that "other acts" evidence was erroneously admitted concerning his arrest and his conduct related thereto, and that testimony by his former wife was admitted in…”
— Wis. Stat. § 905.05(3)(b) — 3 cases
State v. Richard G.B., 2003 WI App 13 (Wis. Ct. App. 2002). “Richard contends the trial court incorrectly interpreted Wis. Stat. § 905.05 (3)(b), an exception to the husband-wife privilege, and allowed his wife to testify against him in spite of his invocation of the privilege.”
State v. Michels, 414 N.W.2d 311 (Wis. Ct. App. 1987). “We conclude that, under the totality of the circumstances, Michels’ statement was voluntary. Husband-Wife Privilege Michels argues that the trial court erroneously admitted the testimony of Gisela in violation of the husband-wife privilege.”
State v. Dax D. Dronso (Wis. Ct. App. 2025).
— Wis. Stat. § 905.05(4) — 1 case
State v. Doney, 338 N.W.2d 852 (Wis. Ct. App. 1983).
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