You will enjoy several benefits when you get married in California. These include the right to make medical decisions on behalf of your spouse, the right to inherit part of your spouse’s estate, and the right to file joint tax returns. The right to refuse to reveal confidential conversations between spouses and the right to refuse to testify against your spouse are common legal benefits. These rights are known as "spousal privilege" and are the most common legal marital privileges under California law. However, major exceptions exist to these privileges, including during and after a divorce. Consult a divorce attorney for guidance on what you can and cannot reveal about your spouse during the divorce process.
The Marital Communications Privilege
Communications refer to verbal or written conversations, not actions. California Evidence Code 980 governs the marital communications privilege. This code protects you against coercion to reveal any confidential conversations you had with your partner during marriage. Public communications or communications made in the presence of a third party are not covered under this code. Marital communications privilege permits you to prevent your partner from revealing private communications in criminal and civil trials. Evidence Code §980 allows the holder of the privilege to prevent the other spouse from disclosing the communication. But the holder can waive the privilege
Major exceptions exist to the marital communications privilege, which apply in the following situations:
- During hearings in which the communication is provided as evidence by a defendant who is one of the partners between whom the communication was made
- During hearings involving child abandonment or child neglect
- During hearings involving bigamy
- During hearings where one partner is charged with an offense against the partner or property of the other partner
- During hearings to determine a spouse’s competence
- During hearings to commit a partner or their assets to the control of another partner because of the partner’s mental or physical condition
- Communications made during planning or committing an offense or fraud
- During a case filed by a surviving partner against a person claiming a portion of the deceased partner’s estate
- During a case filed by or on behalf of one partner against the other partner
The California Evidence Code 980 covers only communication made in the course of your marriage. It does not govern communications made prior to or after marriage.
Spousal Testimonial Privilege
Evidence Code §970 protects a spouse from being compelled to testify against their spouse in criminal proceedings. Every partner is entitled to a spousal testimonial privilege, but you cannot prevent your partner from testifying if he/she wishes to do so. California Evidence Code 970 is only applicable in valid marriages. It does not cover marriages involving immigration fraud, incest, bigamy, or marriages that began purposely to claim the spousal privilege.
Several exceptions also exist to spousal testimonial privilege, which prevents it from being invoked in the following situations:
- During hearings involving child abandonment or neglect
- During hearings involving bigamy
- During hearings in which the person or asset of another person is injured in the course of committing an offense against your partner
- During hearings in which you are charged with an offense against your partner, their property, or their family
- During a case to determine your partner’s competence
- During hearings to commit one partner or their property to the control of another partner because of the partner’s mental or physical condition
- During a case filed by or on behalf of one partner against the other partner, such as domestic violence or divorce
California Evidence Code 970 only covers spouses who were in a marriage for a certain period. The privilege only applies during the marriage, and events before/after are not protected
Whether A Spouse Can Choose To Testify
One crucial aspect of marital testimonial privilege under California law is that your spouse can choose to testify against you. Your spouse may refuse to testify against it, but it does not imply that your partner cannot testify against you. You cannot prevent your spouse from testifying against you if they choose to do so.
Spousal Financial Privilege
The incapacitation of an intimate partner or domestic partner can make encumbrance, sale, or lease of a family real asset necessary. You can do this on behalf of your partner to clear medical bills or compensate for your incapacitated partner’s loss of income. The law under Family Code Section 1100 allows you or a domestic partner to manage and control community personal assets. However, Family Code Section 1102 requires you and your spouse to personally or through a trusted agent to execute an instrument that:
- Encumbers the community's real asset
- Conveys the community's real assets
- Sells community real assets, or
- Lease community real property
The judge can issue an order dispensing with your spouse’s permission if the following requirements are met:
- The alleged transaction is in the best interest of the community
- Permission has been denied or cannot be secured because of the mental or physical incapacity, or prolonged absence of the non-consenting partner.
A spouse or a domestic partner can act on behalf of an incapacitated partner under a conservatorship of the estate and a court order issued by the Probate Court. A conservator of the estate can be appointed under Probate Code Section 1800.3(b). This can happen if a partner is unable to manage their financial resources or resist fraud or undue influence.
The Uniform Statutory Power of Attorney also allows you to act on behalf of your incapacitated spouse regarding real property transactions. A revocable trust can also be executed, giving you the rights over your spouse’s property as a trustee.
The Right To Make Medical Decisions On Behalf Of Your Spouse
The privilege to make healthcare decisions is a protected personal right held solely by the patient. However, the state and federal laws widen the scope of exclusivity of this privilege. This law also restricts the sharing of patients' records and information. Family members, domestic partners, and spouses can face challenges when seeking information from their records. Some doctors overlook these restrictions because they are often motivated by compassion.
However, one spouse should be clear about their ability to make medical decisions on behalf of the other spouse. Some partners often assume that when the other partner is incapacitated, they have the automatic privilege to make medical decisions on their behalf. If your partner becomes temporarily or permanently incapacitated, they may be unable to make medical decisions. Under either situation, you have no right to assume the power to make medical decisions for your partner.
According to Probate Code Statutes, you have no right to make medical decisions on behalf of your spouse. This law only puts you in the class or category of family members, with no priority stated for your spouse. Some hospitals, healthcare providers, or healthcare facilities have developed a hierarchy within the family where a spouse is placed on top.
The law states clearly that marital status alone does not create agency between you and your intimate partner. However, you are a fiduciary under the law, and you owe a duty to your partner. This responsibility does not give the right to serve as an agent in making medical decisions on behalf of your spouse.
The whole family has equal standing in the choice of medication because you have no automatic privilege over your spouse’s right to make his/her own medical decisions. A family member can challenge your decision to make medical decisions on behalf of your spouse. A family member can claim that your choice is not in the best interest of your spouse. Even the court can give a family member the privilege to make medical decisions on behalf of your spouse.
The doctor can also make medical decisions on behalf of your spouse if he/she becomes incapacitated and a family member challenges your decisions. A healthcare provider can also do so if family members fail to reach a unanimous decision. This right will not only shift from you but also from your spouse’s family.
These issues often result in crises in emergency cases because the spouse and family members are frequently not prepared. Most spouses face an overwhelming burden when facing an unanticipated need to make serious medical decisions on behalf of their spouse. These chaotic situations often make doctors assume the right to make crucial decisions.
On the other hand, if need arises, you can make medical decisions on behalf of your spouse if he/she is scheduled for surgery. In this case, your spouse can relinquish the decision-making to you through an oral or written assignment. It is good for a sick spouse to relinquish medical decision-making to their partner before any medical care is contemplated.
Advanced Health Care Directive (AHCD), Surrogacy, And Conservatorship
You can make your wishes known in the Advanced Health Care Directive (AHCD) if you are pursuing the right to make medical decisions on behalf of your spouse. This type of protection is covered under the Probate Code. AHCD has taken over from the Durable Power of Attorney for Health Care. You can secure AHCD forms from doctors and online sources. Estate planning attorneys can also develop AHCDs, tailoring every directive to suit the situation of every person. Often, an AHCD is included in the estate planning package, along with other estate documents like a will or trust.
You can use an AHCD to pursue the right to make medical decisions for your spouse and end-of-life issues. The rights can change from time to time with an updated AHCD. The AHCD handles issues like:
- Use of life-sustaining equipment
- Pain management
- The decision to reject or allow an autopsy, and
- Organ donation, among others
With an AHCD, you can communicate your wishes through writing if you become incapacitated permanently or temporarily. This can be legally relied on by your designated successor and the doctors.
The AHCD is also a means through which you can claim the right, granted to you by your incapacitated spouse, to make medical decisions on his/her behalf. You hold exclusive permission to assume this right if your spouse names you as the sole agent in the AHCD. Sometimes, your spouse can name a co-agent, with whom you will share the right to make necessary medical decisions. If the incapacitated spouse has no spouse, he/she will appoint whomever he/she deems appropriate.
Surrogate Decision-Maker
You can gain the right to make medical decisions on behalf of your partner through an oral appointment of surrogacy. This is often communicated to the doctor or healthcare provider. The doctor can document the oral appointment in the patient’s records. Your ailing spouse can appoint you to act as a surrogate to make medical decisions on his/her behalf. You will be required to follow and implement your spouse’s medical wishes as recorded by the doctor.
If you have no spouse, you can also appoint any person as a surrogate to act on your behalf if you are incapacitated.
However, a surrogate does not have the same expansive privilege as an agent appointed in an AHCD. This can happen if your spouse has not expressed your wishes about the full range of situations that can arise during the time of incapacitation. The doctor can discard your decision as a surrogate if it lacks a foundation of evidence of your intent. The healthcare provider will consider your decision as one that has no patient’s interest.
If your spouse appoints you as a surrogate, you must be certain of his/her spiritual or philosophical choices about medication. You will be powerless if there is no specific evidence of intent in your spouse’s medical file.
Petitioning the court for a conservatorship is the least desirable way of securing the privilege to make medical decisions on behalf of your spouse. This right is subject to objections from other people. This often happens when you or another interested person requests your spouse to be appointed as a conservator.
Nonspousal Healthcare Privilege
Every person has the right to relinquish his/her medical decision-making right when incapacity arises. You can relinquish the right to your spouse, friend, domestic partner, or a trusted family member. You should provide evidence of intent to do so. The Probate Code covers the class of family members without specificity. A domestic partner registered with the Secretary of State in California has the status equivalent to a spouse under the Family Code and Probate Code. Under state laws, friends and unregistered domestic partners have no right.
Most middle-aged adults are taking care of and helping their elderly parents in California. A mature child has the right to make medical decisions on behalf of his/her elderly parents if the parent cannot do so. However, according to statutory law, no right for this purpose is granted to the mature child. A mature child is also among the class of family members. Family members have equal rights in making medical decisions on behalf of the parent. A mature child can only secure the right through an AHCD, surrogacy, or conservatorship.
Some partners choose to cohabit without settling into marriage. Same-sex partners also fail to create a lawful marital relationship, but they can acquire marital rights by registering as same-sex domestic partners. Opposite-sex partners can also register as domestic partners if one or both are above 62 years.
An AHCD provides a role for a domestic partner regardless of how partners weigh the pros and cons of creating a lawful domestic relationship. Opposite-sex unmarried partners have the right to make medical decisions for one another under an AHCD. They are allowed to do so even if they decide to abstain from the legal entanglements of marriage.
The execution of an AHCD is the best way for you to protect your intent regarding medical decisions in case an incapacity arises. A well-developed AHCD expresses medical choices clearly and appoints an agent or co-agents if necessary. You can direct or instruct your agent in this document, who can execute your directives. In this case, the doctor listens when your agent speaks.
The Effect Of Divorce On Marital Privileges
Marital communications and spousal testimonial privileges are robust, but they are not absolute. A divorce can affect these privileges depending on the privilege being invoked. Your spousal testimonial right will end immediately after divorcing your partner. In this case, your ex-partner can be ordered to testify in a criminal or civil action against you. On the other hand, the right to marital communication does not end after divorce. Each ex-partner can refuse to reveal confidential communications they had at the time of their marriage. However, you cannot prevent your ex-partner from revealing confidential communications.
Waiving The Marital Privilege
You can only get around marital communication right by avoiding it. You can inadvertently waive your spousal or marital rights by your choice of words or actions. The law does not allow you to go back and claim the right if you agree to waive the right not to testify. You cannot claim your marital rights in another related case after testifying against your partner in one case. Any information revealed in waiving the privilege cannot be rendered inadmissible after you have given it.
One way of waiving marital privilege is by testifying against your partner in court. You can also waive your marital communication privilege if:
- You disclose significant details of a privileged communication
- Consistent disclosure of privileged communications to other people
Find An Experienced Divorce Attorney Near Me
For more information on spousal or marital privilege and how it applies to criminal charges, trials, or making crucial decisions on behalf of your spouse, contact the Los Angeles Divorce Lawyer. Call us at 310-695-5212 to speak to one of our attorneys.
