Cite as: 524 U. S. 399 (1998)
Opinion of the Court
mentary disclosure of communications as an exception to the privilege: "[T]he general rule with respect to confidential communications . . . is that such communications are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs." Osborn, 561 F. 2d, at 1340. The rationale for such disclosure is that it furthers the client's intent. Id., at 1340, n. 11.2
Indeed, in Glover v. Patten, 165 U. S. 394, 406-408 (1897), this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual's death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client's interests, could be impliedly waived in order to fulfill the client's testamentary intent. Id., at 407-408 (quoting Blackburn v. Crawfords, 3 Wall. 175 (1866), and Russell v. Jackson, supra).
The great body of this case law supports, either by holding or considered dicta, the position that the privilege does survive in a case such as the present one. Given the language of Rule 501, at the very least the burden is on the Independ-2 About half the States have codified the testamentary exception by providing that a personal representative of the deceased can waive the privilege when heirs or devisees claim through the deceased client (as opposed to parties claiming against the estate, for whom the privilege is not waived). See, e. g., Ala. Rule Evid. 502 (1996); Ark. Code Ann. § 16-41- 101, Rule 502 (Supp. 1997); Neb. Rev. Stat. § 27-503, Rule 503 (1995). These statutes do not address expressly the continuation of the privilege outside the context of testamentary disputes, although many allow the attorney to assert the privilege on behalf of the client apparently without temporal limit. See, e. g., Ark. Code Ann. § 16-41-101, Rule 502(c) (Supp. 1997). They thus do not refute or affirm the general presumption in the case law that the privilege survives. California's statute is exceptional in that it apparently allows the attorney to assert the privilege only so long as a holder of the privilege (the estate's personal representative) exists, suggesting the privilege terminates when the estate is wound up. See Cal. Code Evid. Ann. §§ 954, 957 (West 1995). But no other State has followed California's lead in this regard.
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