PR: Title II Regional Chief Counsel Precedents

Effective Dates: 01/04/2018 - Present

TN 13 (01-18)

A. PR 18-002 Clarify precedent opinion PR 08-059 concerning name changes based on domestic partnerships under the California Name Equality Act

Date: September 28, 2017

1. Syllabus

For the Social Security Administration (SSA) purposes, a Declaration of Domestic Partnership and a California Certificate of Registered Domestic Partnership registered as of January 1, 2008, are acceptable evidence of a legal name change and need not be accompanied by a court order to demonstrate a legal name change.

If the domestic partnership document registered on or after January 1, 2008 does not show the new name, the individual who wishes to change his or her name based on the domestic partnership must present a court order changing his or her name.

Name changes based on a domestic partnership registered prior to January 1, 2008, require a court order reflecting a legal name change. This opinion is to clarify precedent opinion PR 08-059.

2. Opinion

QUESTION

You asked that we clarify precedent opinion PR 08-059 concerning name changes based on domestic partnerships under the California Name Equality Act.

SHORT ANSWER

For purposes of a legal name change in California, SSA will accept the original or certified copies of a declaration of domestic partnership and certificate of registered domestic partnership containing a new name and registered as of January 1, 2008.

However, individuals who do not elect to change their names through their domestic partnership certificate registered as of January 1, 2008 and who now want to change their names based on their domestic partnership must present a state court order to subsequently change their names.

BACKGROUND

On October 17, 2007, the Governor of the State of California approved the Name Equality Act of 2007. Regarding domestic partnerships, the Name Equality Act:

Provides that parties to a domestic partnership shall not be required either to have the same name or to change his or her name.

Allows each partner to elect to change his or her middle or last names to the current last name of the other domestic partner, the last name of either domestic partner given at birth, a name combining into a single last name all or a segment of the current or the last name of either domestic partner given at birth, or a hyphenated combination of last names.

Provides that an election by a partner to change his or her name must be entered in the space provided on the Declaration of Domestic Partnership. The Certificate of Registered Domestic Partnership shall include the name used by each partner before registration of the domestic partnership and the new name, if any, selected by each partner upon registration of the domestic partnership.

Provides that the Declaration of Domestic Partnership and the Certificate of Registered Domestic Partnership shall constitute proof that the use of the new name or retention of the former name is lawful.

Provides that a certified copy of the Certificate of Registered Domestic Partnership shall be accepted for identification establishing a true, full name for purposes of a California driver's license.

Provides that the adoption of a new name, or the choice not to adopt a new name shall not abrogate the right of either partner to adopt a different name through usage at a future date, or to petition the superior court for a change of name.

2007 Cal. Legis. Serv. Ch. 567 (A.B. 102) (West), amending Cal. Fam. Code §§ 298, 298.5, 298.6. These provisions are operative as of January 1, 2008.

The California Secretary of State reissued a Declaration of Domestic Partnership Form on January 1, 2008 to contain an optional section for either partner or both partners to a domestic relationship to indicate a change in name. Cal. Fam. Code § 298(d).¹

ANALYSIS

Consistent with the California Name Equality Act, SSA will recognize a name change based on declaration of domestic partnership and certificate of domestic partnership containing the new name and registered on or after January 1, 2008. POMS RM 10212.045.

SSA policy, however, differs from the provisions of the California Name Equality Act in a critical respect. The California Name Equality Act provides in part that the adoption of a new name, or the choice not to adopt a new name shall not abrogate the right of either party to adopt a different name through usage at a future date, or to petition the superior court for a change of name. Cal. Fam. Code § 298.6(c). SSA does not recognize a new name based on common-law usage. An individual cannot later effect a name change for Social Security purposes by simply using a new name.

Thus, to change his/her name based on his/her domestic partnership, an individual whose certificate of domestic partnership registered on or after January 1, 2008 does not reflect a name change must present a court order. POMS RM 10212.080 (Evidence of a Name Change based on a US Issued Court Order Name Change).

CONCLUSION

An individual requesting to change his or her name for Social Security purposes may present a an original or certified copy of a California declaration of domestic partnership and certificate of domestic partnership reflecting the name change and registered on or after January 1, 2008. If the domestic partnership document registered on or after January 1, 2008 does not show the new name, the individual seeking to subsequently change his or her name based on the domestic partnership must present a court order to change his or her name.

B. PR 09-057 Name Change - Termination of Registered Domestic Partnership

Date: February 6, 2009

1. Syllabus

Issue #1: A Notice of Termination of Domestic Partnership in and of itself is not sufficient evidence that a domestic partnership has been terminated. However, a Termination Notice, signed by both domestic partners, along with a six month status letter from the Secretary of State, could provide evidence that the domestic partnership has been effectively terminated. In any event, either party may still bring suit to set aside the termination due to fraud, mistake or duress; and a court may set aside the termination and declare it null and void upon proof that any of the Section 299(a) conditions apply. Cal. Fam. Code § 299(c) (2008).

Issue #2: The dissolution of a California domestic partnership constitutes a legal name change event if it is accomplished through a formal dissolution proceeding in the Superior Court.

2. Opinion

Tonya C~ is requesting her name be changed back to Tonya J~. She filed a "Notice of Termination of Domestic Partnership" (hereafter "Termination Notice") on October XX, 2008, with the State of California Secretary of State. The Sacramento West District Office raised two issues with respect to Ms. C~s' request.

Issue #1 Is a Notice of Termination of Domestic Partnership sufficient evidence of a terminated domestic partnership?

Short Answer:

No, the Termination Notice itself is not sufficient evidence that the domestic partnership has been terminated. However, if no revocation is filed, the domestic partnership will terminate automatically on May 1, 2009.

Thus, the Termination Notice, signed by both domestic partners, along with the six month status letter from the Secretary of State, could provide evidence that the domestic partnership has been effectively terminated. However, either party may still bring suit to set aside the termination due to fraud, mistake or duress; and a court may set aside the termination and declare it null and void upon proof that any of the Section 299(a) conditions apply. Cal. Fam. Code § 299(c) (2008).

Discussion:

Termination of a registered domestic partnership is not effective until six months after the date of filing of the Termination Notice with the Secretary of State. Cal. Fam. Code § 299(b) (2008). Either party may, before the effective date, file a Revocation of Termination of Domestic Partnership. Cal. Fam. Code § 299(b) (2008). If no revocation is filed, the domestic partnership terminates automatically. See Cal. Sec'y of State, Terminating a California Registered Domestic Partnership 4-5 (2008), available at http://www.sos.ca.gov/dpregistry/forms/sf-dp2.pdf.

Moreover, the option to "terminate," as opposed to dissolving the relationship in court is only available to couples who have been registered for fewer than five years, have no children, have few assets/debts, and nothing is in dispute. Specifically, the parties may only seek termination of the domestic partnership (which is similar to summary dissolution of a marriage) if they satisfy all of the conditions outlined in California Family Code Section 299(a). See also Cal. Fam. Code § 2400(a) (2008) (rules for summary dissolution of marriage). These conditions are:

1) There are no children of the relationship of the parties born before or after registration of the domestic partnership or adopted by the parties after registration, and neither of the partners, to their knowledge, is pregnant;

2) The partnership was not registered prior to October 30, 2003 (was not more than five years in duration);

3) Neither party owns or has an interest in any real property wherever situated, with the exception of a standard residential lease, occupied by either party;

4) Neither party owes more than $5,000 in debts (excluding an automobile loan);

5) The total fair market value of community property assets, excluding all encumbrances and automobiles, including any deferred compensation or retirement plan, is less than $33,000, and neither party has separate property assets, excluding all encumbrances and automobiles, in excess of $33,000;

6) The parties have formally agreed to the division of assets and the assumption of liabilities of the community property, and have executed any documents or other evidence of transfer necessary to effectuate the agreement;

7) The parties waive any right to support by the other domestic partner; and

8) The Termination Notice was signed by both registered domestic partners (both parties desire the termination and attest that they read and understand the above requirements).

Cal. Fam. Code § 299(a) (2008) (emphasis added); see also California Courts Self-Help Center, Ending a Domestic Partnership, http://www.courtinfo.ca.gov/selfhelp/family/overview/endingdp.htm#end (last visited Jan. 30, 2009). Six months have not elapsed since Ms. C~ filed her Termination Notice. Ms. C~ has indicated that she could obtain a "status letter" from the California Secretary of State once the termination is effective. Therefore, as evidence of effective termination, we would need a copy of this "status letter," obtained by Ms. C~ from the Secretary of State on or after May 1, 2009, six months after the October 30, 2008 filing of the Termination Notice.

However, it is important to note that the Secretary's decision to terminate a domestic partnership may still be challenged in California Superior Court. Cal. Fam. Code § 299(d) (2008). The court may set aside the termination upon proof that the Section 299(a) conditions do not apply, or upon finding that the termination was obtained through fraud, mistake or duress. Cal. Fam. Code § 299(c) (2008).

Issue #2 Does the dissolution of a California domestic partnership constitute a legal name change event?

Short Answer:

Yes, but only if it is accomplished through a judicial proceeding. "Dissolution" of a California domestic partnership is accomplished through petition to Superior Court, and if name change is raised during the proceeding, it can constitute a legal name change event. While a "terminated" domestic partnership has many of the same legal effects as dissolution, it cannot qualify as a legal name change event because it lacks any process for changing one's name, whereas, the more formal, judicial "dissolution" incorporates a process for legal name change.

Consequently, even if the termination effectively dissolved her domestic partnership, Ms. C~ must seek a superior court judgment for her name change. Ms. C~ may accomplish this by filing with the court an ex parte application for restoration of her former name, in order to obtain legal recognition of her name change.

Discussion:

A properly terminated registered domestic partnership is treated as a dissolution, which generally has the same legal effect as dissolution of marriage. Cal. Fam. Code § 297.5(b) (2008) (former registered domestic partners generally have "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under [California] law . . . as are granted to and imposed upon former spouses"); Cal. Fam. Code § 299(b) (2008) ("[t]he effect of termination of a domestic partnership pursuant to this section shall be the same as, and shall be treated for all purposes as, the entry of a judgment of dissolution of a domestic partnership").

Among the several ways in which domestic partners' benefits and responsibilities are not the same as spouses', the California Supreme Court specifically noted that a "partners' joint filing of a [Termination Notice] may become effective without any court action, whereas a summary dissolution of a marriage is initiated by the spouses' joint filing of a petition in superior court and becomes effective only upon entry of a court judgment." In re Marriage Cases, 43 Cal.4th 757, 805 n.24 (Cal. 2008). In Knight, the court noted that "the mechanisms for forming and terminating the relationships are different," such that "[m]ore than the mere filing of documents [e.g., Termination Notice] with the Secretary of State is required to form or dissolve a marriage." Knight v. Superior Court, 128 Cal.App.4th 14 (Cal. Ct. App. 2005). Thus, unlike a court ordered dissolution, an administratively "terminated" domestic partnership does not involve a superior court judgment.

Further, unlike in the administrative process for terminating a domestic partnership, the judicial proceeding for dissolving a marriage includes an opportunity to expediently restore one's name. "[T]he court, upon the request of a party, shall restore the birth name or former name of that party, regardless of whether or not a request for restoration of the name was included in the petition." Cal. Fam. Code § 2080 (2008) (emphasis added).

Registered domestic partners have the same opportunity to petition the court for dissolution of the partnership. The "dissolution of a domestic partnership [and] nullity of a domestic partnership . . . shall follow the same procedures, and the partners shall possess the same rights, protections, and benefits, and be subject to the same responsibilities, obligations, and duties, as apply to the dissolution of marriage." Cal. Fam. Code § 299(d) (2008). In fact, the two page form (FL-103) that partners must file with the court in order to dissolve a domestic partnership, mirrors that used for dissolution of marriage. Cal. R. of Ct., Rule 5.28 (2009).

Consequently, registered domestic partners who seek court ordered dissolution also have the same opportunity to request that they recover their previous names. However, even if a partnership is effectively dissolved in a judicial proceeding, if no request for name change is made, a subsequent request to retain one's "maiden name" must be sought through the court, using the "Ex Parte Application for Restoration of Former Name After Entry of Judgment and Order" (form FL-395). See California Courts Self-Help Center, How Do I Change My Name (after divorce), http://www.courtinfo.ca.gov/selfhelp/other/namechangeadult6.htm (last visited Jan. 30, 2009).

Therefore, once Ms. C~' domestic partnership automatically terminates in May 2009, the termination should be treated by the court as "the entry of a judgment of dissolution of a domestic partnership." Cal. Fam. Code § 299(b) (2008). By providing evidence of this "final judgment" and submitting the ex parte application for restoration of her former name, as outlined on the court's self help website, Ms. C~ should be able to obtain sufficient evidence of legal name change. We advise, however, that she contact her county clerk for the specific process used in her county. See California Courts, Find a Court, http://www.courtinfo.ca.gov/courts/find.htm (last visited Jan. 30, 2009).

C. PR 08-059 Name Change Based on California Domestic Partnership - Name Equality Act of 2007

Date: February 8, 2008

1. Syllabus

For SSA purposes, a Declaration of Domestic Partnership and a California Certificate of Registered Domestic Partnership registered as of January 1, 2008 are acceptable evidence of a legal name change and need not be accompanied by a court order to demonstrate a legal name change. For name changes based on a domestic partnership registered prior to January 1, 2008, the Declaration of Domestic Partnership and a California Certificate of Registered Domestic Partnership must be accompanied by a court order reflecting a legal name change. This opinion supplements PR 07-131 (5/8/07).

2. Opinion

On October 17, 2007, the Governor of the State of California approved the Name Equality Act of 2007. Regarding domestic partnerships, the Name Equality Act:

Provides that parties to a domestic partnership shall not be required either to have the same name or to change his or her name.

Provides that a certified copy of the Certificate of Registered Domestic Partnership shall be accepted for identification establishing a true, full name for purposes of a California driver's license.

2007 Cal. Legis. Serv. Ch. 567 (A.B. 102) (West), amending Cal. Fam. Code §§ 298, 298.5, 298.6. These provisions are operative as of January 1, 2008.

The California Secretary of State reissued a Declaration of Domestic Partnership Form on January 1, 2008 to contain an optional section for either partner or both partners to a domestic relationship to indicate a change in name. Both domestic partners must complete the same Declaration of Domestic Partnership, which they can fill in and print from the California Secretary of State's website. The partners must have their signatures witnessed by a public notary, and they must file the completed, notarized declaration to the California Secretary of State with the applicable registration fee. After the Domestic Partners Registry receives and records the Declaration (and fee), a copy of the Declaration and a Certificate of Registration of Domestic Partnership will be returned to the partners. Cal. Fam. Code § 298.5(b).

We are attaching a blank Declaration of Domestic Partnership from the Secretary of State's website at http://www.sos.ca.gov/dpregistry/forms/sf-dp1.pdf., as well as a sample redacted Certificate of Registered Domestic Partnership that was issued on January 2, 2008.

For SSA's purposes, a Declaration of Domestic Partnership and a California Certificate of Registered Domestic Partnership registered as of January 1, 2008 are acceptable evidence of a legal name change and need not be accompanied by a court order demonstrating a legal name change.

A name change based on a domestic partnership registered prior to January 1, 2008, the Declaration of Domestic Partnership and the Certificate of Registered Domestic Partnership must be accompanied by a court order reflecting a legal name change. See Program Operations Manual System PR 02707.006 (specifically PR 07-131). We note that the California Secretary of State will likely not allow domestic partners who had their domestic partnership registered prior to January 1, 2008, to re-register the domestic partnership using the new Declaration of Domestic Partnership for purposes of a name change. The California Secretary of State posted the following question/answer on the registry website:

My partner and I have already registered our domestic partnership with the Secretary of State. We both have since legally changed our names. What do we need to do to have these changes reflected with our domestic partnership with the State?

Other than changing your names at the time of registration, there is no provision in the law to change the name of a domestic partner as it appears in the Domestic Partners Registry. We suggest keeping copies of name change documents with your copy of your Declaration of Domestic Partnership. (Emphasis)

http://www.sos.ca.gov/dpregistry/dp_faqs.htm#question10.

D. PR 07-131 Name Change Based on California Domestic Partnership

Date: May 8, 2007

1. Syllabus

For a name change based on a domestic marriage in the State of California, the Declaration of Domestic Partnership and Certificates of Registered Domestic Partnership must be accompanied by a court order demonstrating a legal name change.

Neither person entering into a domestic partnership can be married to someone else or a member of another domestic partnership with someone else if such union has not been terminated, dissolved, or adjudged a nullity.

2. Opinion

Privileged Communication

On February 1, 2007, we issued a legal opinion indicating that a Declaration of Domestic Partnership and California Certificate of Domestic Partnership could be evidence of a legal name change in California. In an electronic mail message sent on March 7, 2007, you posed additional questions regarding these two domestic partnership documents. We are merging our original opinion with answers to your subsequent questions. We are also providing you information regarding proposed California legislation addressing name changes. We recommend that you use this opinion in lieu of the opinion posted on the PolicyNet - POMS at PR 02707.006.

Analysis

In order to obtain a replacement SSN card due to a name change, the applicant must submit one or more documents identifying him or herself by both the old name (as shown on the latest Numident record) and the new name (the name the applicant wants shown on the SSN card). See Program Operations Manual System (POMS) RM 00203.210. Additionally, the identity document(s) must show information that can be compared to the Numident data (e.g., age, date of birth, parents' names). Id. (citing POMS RM 00203.200G.2).

Whether a Declaration of Domestic Partnership and/or Certificate of Registered Domestic Partnership would be acceptable evidence for a name change depends upon state law. POMS RM 00203.210. State law may also prohibit any or all changes. Id. Thus, a domestic partnership certificate is acceptable evidence for a name change where State law allows such a change.

California Law

California recognizes a marriage license and certificate of registry of marriage as a basis for name change. Weathers v. Superior Court, 126 Cal. Rptr. 547, 549 (Cal. Ct. App. 1976). California normally recognizes a marriage which is validly contracted in another state, unless against California public policy. Cal. Fam. Code § 308 (2007) ("A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state); B~ v. U.S., 191 F.2d 92, 95 (9th Cir. 1951) ("A marriage is generally recognized as valid in any state if it was valid in the state where it was celebrated, at least unless it collides with some strong public policy of the state of residence").

California, however, does not recognize same-sex marriages. See Cal. Fam. Code § 308.5 (2007) ("Only a marriage between a man and a woman is valid or recognized in California"). Instead, California recognizes Domestic Partnerships; a certified legal relationship which gives registered domestic partners the "same rights, protections and benefits and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." Cal. Fam. Code § 297.5 (2007).

California law provides that:

Domestic partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring.
A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met:
1. Both persons have a common residence.
2. Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
3. The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
4. Both persons are at least 18 years of age.
5. Either of the following:
  1. Both persons are members of the same sex.
  2. One or both of the persons meet the eligibility criteria under Title II of the Social Security Act as defined in 42 U.S.C. § 402(a) for old-age insurance benefits or Title XVI of the Social Security Act as defined in 42 U.S.C. § 1381 for aged individuals. Notwithstanding any other provision of this section, persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62.

Cal. Fam. Code § 297 (2007).

California's name change statute does not set forth specific events which are recognized as legal bases for a name change. Cal. Civ. Proc. Code § 1275 et seq. (2007). Conversely, there is no California law precluding a domestic partnership as a basis for a legal name change. The statute does provide, however, that all applications for change of names shall be made to the superior court of the county where the name change applicant resides, except as stated elsewhere in the statute. Id. §1276(a)(2007). California does not require that any specific documents be submitted when filing a petition for a name change. The statute provides that a petition or pleading must specify the place of birth and residence of the person, his or her present name, the proposed name, the reasons for the change of name, and "shall, if neither parent of the person has signed the petition, name, as far as known to the person proposing the name change the parents of the person and their place of residence, if living, or if neither parent is living, near relatives of the person, and their place of residence." Cal. Civ. Proc. Code § 1276(a)(2007).

Thus, because California state law provides registered domestic partners the same rights, protections and benefits as are granted to and imposed upon spouses, a Declaration of Domestic Partnership and Certificate of Registered Domestic Partnership can be used a proof of a legal name change.

Instructions

Regarding the Declaration of Domestic Partnership and Certificate of Registered Domestic Partnership, you asked:

whether both of these documents were given to the couple,

whether both documents show the same information,

how the names appear on the documents,

what biographical information the documents show, and

what other relevant data is captured on the documents.

Most of your questions are answered in the Instructions for Completing the Declaration of Domestic Partnership (Form NP/SF DP1) available at http://www.sos.ca.gov/dpregistry/forms/sf-dp1.pdf.

Both domestic partners must complete the same Declaration of Domestic Partnership, which they can fill in and print from the California Secretary of State's website. The Declaration requires the partners' signatures, printed versions of their last, first, and middle names, their mailing address (they must be living together), city, state, and zip code, and e-mail address(es) (optional) (copy attached). The partners must have their signatures witnessed by a public notary, and they must file the completed, notarized declaration to the California Secretary of State with the applicable registration fee. After the Domestic Partners Registry receives and records the Declaration (and fee), a copy of the Declaration and a Certificate of Registration of Domestic Partnership will be returned to the partners. Cal. Fam. Code § 298(c)(2007).

The Declaration is on white paper. The Certificate of Registration of Domestic Partnership is printed on blue paper and is stamped with the (gold) seal of the State of California (copy attached). The Declaration and Certificate of Registration of Domestic Partnership do not show the same information: the Declaration contains the partners' signatures, full names, street and e-mail addresses, the Certificate contains only their full names and the date their domestic partnership was registered. The partners' names are both signed and printed on the Declaration. Their names are pre-printed on the Certificate. Finally, there is no biographical information on either document other than their names (both documents) and addresses (Declaration only). California law provides, however, that filing an intentionally and materially false Declaration of Domestic Partnership is a misdemeanor. Cal. Fam. Code § 298(c)(2007).

The Name Change Equality Act of 2007

Pending in California is Assembly Bill (AB) 102, otherwise known as the "Name Change Equality Act of 2007." The bill was originally introduced on January 3, 2007, amended on February 28, 2007, passed on a second reading in the Judiciary Committee on April 23, 2007, and was on its third reading by the Appropriations Committee on May 3, 2007. The bill must be approved by the general assembly, by the state senate, and signed by the governor before it becomes law. If approved, AB102 would become effective January 1, 2008. This bill, in its current form, is relevant here because it would not only change the way domestic partners change their names, but it would also affect name changes due to marriage, thus invalidating this opinion, as well as earlier advice provided regarding name changes based on marriage.

Among other things, the Name Change Equality Act:

Provides that parties to a marriage or registered domestic partnership shall not be required either to have the same name or change his/her surname.

2) Allows a person to adopt any surname including, but not limited to, the surname of the other spouse or domestic partner, any former surname of either spouse or domestic partner, a name combining into a single surname all or a segment of the surname or any former surname of either spouse or domestic partner, or a hyphenated combination of surnames.

3) Provides that an election by a person to change his or her name by entering the new surname on the marriage license application, or certificate of registered domestic partnership, shall serve as a record of the surname change.

4) Provides that a copy of a marriage license or certificate of registered domestic partnership shall be accepted as identification establishing a surname.

5) Provides that the adoption of a new surname, or the choice not to adopt a new surname shall not abrogate the right of either party to adopt a different surname through usage at a future date, or to petition the superior court for a change of name.

For SSA's purposes, the most important changes would be the ability of the married couple or each domestic partner to change their name(s) on/with the marriage certificate or the declaration of partnership registration form.

Currently, if a man wishes to adopt his wife's surname, or the couple wishes to adopt a hyphenated name or an entirely different name, they must do so through a legal name change in a court proceeding; the name change is not reflected on the marriage license or certificate. Likewise, if domestic partners wish to change their names or adopt one-another's surnames, they must go through a legal name change in court. This is not the case for a woman who wishes to adopt her husband's surname; she can accomplish this by simply recording her new name on the marriage certificate. This law would change that to make it easier to change names in any manner where the name change is due to marriage or domestic partnership.

If AB102 is approved in its current form, neither married couples nor domestic partners would have to go to court to get a legal name change due to marriage or domestic partnership. Until that time, Declarations of Domestic Partnership and Certificates of Registered Domestic Partnership must be accompanied by a court order demonstrating a legal name change.

E. PR 07-062 Name Change Based on California Domestic Partnership

Date: February 1, 2007

1. Syllabus

PR 07-131 above, supersedes this opinion.

California state law provides registered domestic partners the same rights, protections and benefits as are granted to and imposed upon spouses, a Declaration of Domestic Partnership and Certificate of Registered Domestic Partnership can be used as proof of a legal name change.

2. Opinion

You have asked whether a domestic partnership is evidence of a legal name change in California.

Analysis

California Law

California recognizes a marriage license and certificate of registry of marriage as a basis for name change. Weathers v. Superior Court, 126 Cal. Rptr. 547, 549 (Cal. Ct. App. 1976). California normally recognizes a marriage which is validly contracted in another state, unless against California public policy. Cal. Fam. Code § 308 (2007) ("A marriage contracted outside this state that would be valid by the laws of the jurisdiction in which the marriage was contracted is valid in this state); Barrons v. U.S., 191 F.2d 92, 95 (9th Cir. 1951) ("A marriage is generally recognized as valid in any state if it was valid in the state where it was celebrated, at least unless it collides with some strong public policy of the state of residence").

California, however, does not recognize same-sex marriages. See Cal. Fam. Code § 308.5 (2007) ("Only a marriage between a man and a woman is valid or recognized in California").

Instead, California recognizes Domestic Partnerships; a certified legal relationship which gives registered domestic partners the "same rights, protections and benefits and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses." Cal. Fam. Code § 297.5 (2007).

California law provides that:

Domestic partners are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring.
A domestic partnership shall be established in California when both persons file a Declaration of Domestic Partnership with the Secretary of State pursuant to this division, and, at the time of filing, all of the following requirements are met:
1. Both persons have a common residence.
2. Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity.
3. The two persons are not related by blood in a way that would prevent them from being married to each other in this state.
4. Both persons are at least 18 years of age.
5. Either of the following:
  1. Both persons are members of the same sex.
  2. One or both of the persons meet the eligibility criteria under Title II of the Social Security Act as defined in 42 U.S.C. § 402(a) for old-age insurance benefits or Title XVI of the Social Security Act as defined in 42 U.S.C. § 1381 for aged individuals. Notwithstanding any other provision of this section, persons of opposite sexes may not constitute a domestic partnership unless one or both of the persons are over the age of 62.

Cal. Fam. Code § 297 (2007).

Footnotes:

[1]

^. A name change based on a domestic partnership registered prior to January 1, 2008, the Declaration of Domestic Partnership and the Certificate of Registered Domestic Partnership must be accompanied by a court order reflecting a legal name change. See POMS PR 02707.006 (specifically PR 07-131). We note that the California Secretary of State will likely not allow domestic partners who had their domestic partnership registered prior to January 1, 2008, to re-register the domestic partnership using the new Declaration of Domestic Partnership for purposes of a name change. The California Secretary of State posted the following question/answer on the registry website:

Other than changing your names at the time of registration, there is no provision in the law to change the name of a domestic partner as it appears in the Domestic Partners Registry. We suggest keeping copies of name change documents with your copy of your Declaration of Domestic Partnership. (Emphasis)

http://www.sos.ca.gov/dpregistry/dp_faqs.htm#question10.