TN 5 (10-09)

A. PR 09-169 Request for Regional Chief Counsel Opinion on Wisconsin Declaration of Domestic Partnership as Name Change Document -- REPLY Our Ref: 09-0190 ID 475971

DATE: September 9, 2009

1. SYLLABUS

Evidence of a Wisconsin domestic partnerships is insufficient to establish a name changing event for Social Security purposes because, in Wisconsin, the law neither expressly provides domestic partners the right to change their names nor provides that domestic partnerships are equal to marital relationships.

2. OPINION

You asked whether Wisconsin state law would allow name changes, for enumeration purposes, based on same sex couples who have registered in a domestic partnership. We conclude that declarations of domestic partnerships in Wisconsin are not the legal equivalent of a marriage under the law, and therefore should not be considered an event justifying a name change under SSA policy.

BACKGROUND

In 2006, Wisconsin amended its constitution to provide that “[a] legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” Wis. Const. Art. XIII, § 13. On June 29, 2009, the Wisconsin legislature enacted the Executive Budget Act (the Act), which authorized, among other things, the legal status of domestic partnerships. See 2009-2010 Wis. Legis. Serv. Act 28, § 3128 (to be codified at Wis. Stat. §§ 770.001 et seq.). The new law states that the legislature “finds that the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with or a violation of article XIII, section 13, of the Wisconsin Constitution.” Id. (to be codified at Wis. Stat. § 770.001).

Prior to passage of the Act, the legislature obtained a legal opinion from the Wisconsin Legislative Council as to whether the domestic partnership provisions in the proposed legislation (Assembly Bill 75) would confer to unmarried individuals a status identical or substantially similar to that of marriage, contrary to the Wisconsin Constitution. See Memorandum from Chief of Legal Servs. to Legis. Fiscal Bureau, Domestic Partnership in 2009 Assembly Bill 75 (Biennial Budget Bill) and Art. XIII, Section 13, Wis. Const. (May 6, 2009) (hereinafter Opinion). The Opinion acknowledged that the proposed law would provide domestic partners with many benefits enjoyed by spouses, such as inheritance rights and certain property rights, rights related to employment of the partner, the right to bring wrongful death actions, the right to invoke the spousal evidentiary privilege, and medical rights (such as the right to access treatment records and make health care decisions). Opinion at 2-3. However, the Opinion observed that the Bill did not provide domestic partners with the “core aspects of the legal status of marriage,” such as the mutual obligation of support; the comprehensive property system that applies to spouses; and the requirements of divorce law for terminating a marriage, such as division of property and support. Opinion at 3, 5. The Opinion concluded that “[b]ecause the legal relation of domestic partnership under Assembly Bill 75 does not include comprehensive, core aspects of the legal relation of marriage, the legal relation of domestic partnership is not the same as and arguably is not nearly the same as the legal relation of marriage.” Opinion at 5.

Apparently based in part on this Opinion, the legislation was enacted, and effective August 3, 2009, individuals in Wisconsin could begin applying for domestic partnerships. See 2009-2010 Wis. Legis. Serv. Act 28, § 3128 (to be codified at Wis. Stat. §§ 770.07(1)(a)). Under the new law, two individuals may form a domestic partnership if (1) each individual is at least 18 years old and capable of consenting to the partnership; (2) neither individual is married or in a domestic partnership with another person; (3) the individuals share a common residence; (4) the individuals are not more closely related than second cousins, and (5) the individuals are members of the same sex. Id. (to be codified at Wis. Stat. § 770.05(1)-(5)). The individuals must apply to the county clerk. Id. (to be codified at Wis. Stat. § 770.07(1). After submitting their application, the partners must complete a Declaration, sign it in the presence of a notary public, and submit the Declaration to the Register of Deeds, who must record the Declaration and forward it to the State Registrar of Vital Statistics. Id. (to be codified at Wis. Stat. § 770.10). A domestic partner may terminate the domestic partnership by filing a completed and notarized Notice of Termination of Domestic Partnership with the county clerk who issued the Declaration. Id. (to be codified at Wis. Stat. § 770.12(1)-(3)). The domestic partnership terminates 90 days after it is recorded by the Recorder of Deeds. Id. (to be codified at Wisc. Stat. § 770.12(4)(a)). Alternatively, if either of the partners marries, the domestic partnership terminates automatically. Id. (to be codified at Wisc. Stat. § 770.12(4)(b)).

DISCUSSION

Under current SSA policy, SSA will not honor a request to change a name based merely on a common law right to use a new name. Rather, the individual must show evidence of a name change event. EM-06064; see generally POMS RM 00203.210(A)(2), (B). A name change event can generally be established with evidence of a U.S. ceremonial marriage. Id. In addition, in some circumstances, a state-recognized domestic partnership may be sufficient to constitute a name-change event. See id.; see generally POMS RS 00203.200(H)(2)(b) (discussing when a civil union is sufficient to support a request for name change).

We discussed this policy with a specialist in the Office of Income Security Programs (OISP), who clarified that domestic partnership documents are acceptable evidence of a name change event for purposes of obtaining a name change on the SSN card where either: (1) state law specifically allows partners in a domestic partnership to change their names; or (2) under state law, a domestic partnership is essentially equivalent to a marriage. See also POMS PR 02707.016 (PR 08-026) (certificate of domestic partnership in Illinois insufficient to support a name change where Illinois did not recognize document as “the equivalent of a marriage certificate, which SSA requires in order to effectuate a name change.”); POMS PR 02705.033 (PR 07-072) (a civil union in New Jersey is sufficient to support a name change where state law specifically allowed for the right to change surnames based on civil union event without a court order); POMS PR 02705.032 (PR 08-043) (civil union in New Hampshire is sufficient to support name change where parties to civil union are entitled to all the rights and subject to all of the obligations that apply to spouses); POMS PR 02705.008 (PR 07-162) (Connecticut civil union certificate sufficient to change name where state law gives parties to a civil union the same benefits, protections, and responsibilities as spouses); POMS RM 00203.200(H)(2)(b).

The first criteria for establishing a domestic partnership as a name changing event is not met here. The Wisconsin domestic partnership law includes no express provision for a person to change his or her name upon registering a domestic partnership. Indeed, there is no specific statute that allows for married couples to change their names. Rather, in Wisconsin, a married couple can assume the name of the spouse under the common law rule that allows anyone to take a new name, through usage of that name, so long as the name is not taken for fraudulent purposes. See Kruzel v. Podell, 226 N.W.2d 458, 460-61 (Wis. 1975). However, as discussed above, the mere right to change a name under the common law is not sufficient, standing alone, to change the name on a Social Security record.

The second criteria for establishing a domestic partnership as a name changing event also is not met here. Wisconsin would not consider a domestic partnership to be essentially the same as or equivalent to a marriage. In fact, to do so would violate the state constitution. Wis. Const. art. XIII, § 13. In enacting the domestic partnership provisions, the legislature expressly stated that the legal status of domestic partnership is “not substantially similar to that of a marriage.” 2009-2010 Wis. Legis. Serv. Act 28, § 3128 (to be codified at Wis. Stat. § 770.001).

CONCLUSION

We conclude that evidence of a Wisconsin domestic partnerships would be insufficient to establish a name changing event for Social Security purposes because, in Wisconsin, the law neither expressly provides domestic partners the right to change their names nor provides that domestic partnerships are equal to marital relationships.

Donna L. C~
Regional Chief Counsel, Region V
By: ____________________________
Suzanne D~
Assistant Regional Counsel