BASIC (10-05)

A. PR 08-160 Validity of Using Marriage Certificate as Proof of Name Change for Groom in the State of Iowa.

DATE: July 17, 2008

1. SYLLABUS

The Iowa Certificate of Marriage is acceptable evidence of a name change to an entirely new surname, when the Certificate of Marriage documents both the old and the new names.

2. OPINION

You have requested our opinion as to whether a marriage certificate can be accepted as proof of a legal name change in Iowa when a groom changed his surname (last name) to his mother's maiden name, a name he had never previously used. We believe that an Iowa marriage certificate satisfies the requirements for proof of a name change.

Analysis

As you have noted, Program Operations Manual System (POMS) RM 00203.210, provides that an individual who wishes to change the name on his or her social security number card must submit an identity document supporting the legal name change. The name change document (e.g., a marriage document) must identify the number holder by both the old and new name and show either (1) a description or photograph of the person or (2) biographical information (i.e., age, date of birth, or parents' names) that can be compared with the Numident data. See POMS RM 00203.210. In addition, if a name change event occurred over two years ago, the applicant must also submit an identity document in the old name and an identity document in the new name. See POMS RM 00203.210. The POMS recognizes that some states, such as Iowa, permit newly married couples to take an entirely new surname, one that neither the bride nor groom previously used. See POMS RM 00203.210D.5.

In Iowa, the marriage process involves three separate marriage documents. A couple wishing to marry must complete an "Application for Marriage License in Iowa," available at http://www.shco.org/pdfs/Application_for_Marriage_License.pdfe State of Iowa allows an individual to change his or her name on the application for a marriage license. See Iowa Code Ann. § 595.5 (2008). "A party may indicate on the application for a marriage license the adoption of a name change. The names used on the marriage license shall become the legal names of the parties to the marriage." Iowa Code Ann. § 595.5 (2008). There is no preclusion against the adoption of an entirely new surname.

The parties to be married then receive a "License to Marry" to present to the marriage officiant and a "Certificate of Marriage" which the marriage officiant and the parties must complete immediately after the marriage ceremony. On the Certificate of Marriage, the parties must sign the legal names designated and notarized on the Application for Marriage License. Seehttp://webstercountyia.org/Recorder%5CMarriage%20License%20Instructions.pdfyou noted in your request, an Iowa Certificate of Marriage provides biographical information of the parties. In addition, the marriage certificate shows both the old and new surnames. On July 16, 2008, we verified with Patti P~ of the Clinton County Recorder/Registrar's Office that when the parties to a marriage elect a name change, the Certificate of Marriage documents both the old and new names in addition to the biographical information from the application. As long as the Iowa Certificate of Marriage shows the newly chosen surnames and the old surnames, as well as the biographical information, we believe that it is sufficient to support the legal name change of a groom who changed his surname to an entirely new surname. See POMS PR 02712.018.

Kristi A. S~III
Chief Counsel, Region VII
By__________
Anne M. M~
Assistant Regional Counsel

B. PR 04-077 Request for Legal Opinion on a marriage certificate being acceptable proof of identity to support a request by a man to begin using the woman's last name as a result of that marriage in the four states in our region.

DATE: April 29, 2003

1. SYLLABUS

The Kansas City Region VII OGC responded to a request for a legal opinion on whether a marriage certificate was acceptable evidence of name change when a man wishes to change his surname (last name) to that of his wife after marriage. The procedures in POMS RM 00203.210 should be followed by each state in Region VII with regard to change of name on an SSN record because of marriage. A marriage certificate is acceptable evidence for a name change dependant on the state where the marriage takes place.

Iowa

Iowa Law provides that when individuals are married they indicate on the application for a marriage license the adoption of a name change. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses). The member of the married couple must list the surname he or she intends to use after marriage, on the application for a marriage license.

Kansas

Kansas follows common law, under which there is no prohibition which would keep a husband from adopting his wife's surname. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses).

Missouri

Missouri follows common law, under which there is no prohibition which would keep a husband from adopting his wife's surname. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses).

Nebraska

Nebraska follows common law, to the extent that it is not inconsistent with the Constitution or other laws of the state. There is nothing in Nebraska law or custom to prohibit a husband from adopting his wife's surname at the time of marriage. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses).

2. OPINION

You requested a legal opinion regarding whether a marriage certificate was acceptable evidence of name change when a man wishes to change his surname (last name) to that of his wife after marriage. You noted that you were unable to determine if marriage itself was an acceptable name change event in Missouri, Kansas, and Nebraska. You further noted that in Iowa, when the marriage license application is made, the individuals declare what surname they intend to use after marriage. Accordingly, for marriages in Iowa, you stated that SSA has used the marriage certificate as valid proof of identify for changing numident records. We believe that it is proper to follow the procedures in POMS RM 00203.210 in each state within Region VII with regard to change of name because of marriage.

Analysis

An individual who wishes to change the name or other personal identifying information previously submitted in connection with an application for a social security number card may do so by completing and signing an SSA Form SS-5. See 20 C.F.R. § 422.110 (2002). When a request for a name change is made, the individual receives a new social security number card with his or her new name bearing the same number that was previously assigned. See id. Evidence of identify must be submitted, and may consist of a driver's license, identify card, or marriage record, along with other documents not relevant here. See 20 C.F.R. § 422.107(c) (2002).

The regulatory requirements have been further clarified in the Program Operations Manual System (POMS). A marriage certificate is acceptable evidence for a change of name. See POMS RM 00203.210, "Changing Numident Data." Furthermore, if in the state where the marriage takes place, the state recognizes the marriage as an acceptable name-changing event for the husband, SSA will change the surname of the husband. See POMS RM 00203.210, "Changing Numident Data."

As you noted in your request, in Iowa when individuals are married, they list on the license the surname they intend to use after marriage. For your future reference, we note that this is codified in section 595.5 of the Iowa Code. "A party may indicate on the application for a marriage license the adoption of a name change" and "these names shall become the legal names of the parties to the marriage." Iowa Code Ann. § 595.5 (2001). Therefore, in Iowa it is correct to amend a husband's name in SSA records, upon his proper request, to reflect the name that is selected on the marriage license.

Concerning the other states in our region, Kansas, Nebraska, and Missouri, these states all follow the common law, under which there is no prohibition which would keep a husband from adopting his wife's surname. In these states, there are no statutes that govern name changes at the time of marriage. Under the common law, a person has the right to assume any name he or she lawfully chooses. See 57 Am. Jur. 2d Name § 16 (2002). This is possible without any legal proceedings, merely by simple usage or habit, absent fraud, misrepresentation, ¹ or an interference with the rights of others. See id. There is nothing in the common law that would prohibit even a foolish choice of name. See id. At the time of marriage, the right of a woman to continue to use her maiden name is established, and the common-law rule that a person may use any name (absent fraud or misrepresentation) is given as the basis for allowing a woman to adopt her maiden name or change her name. See 57 Am. Jur. 2d Name § 9 (2002). Married women and men are free to adopt a name change at will, provided it was done for an honest purpose, without resorting to legal proceedings. See 57 Am. Jur. 2d Name § 40. Likewise, an individual has the right to resume the use of their former name, absent fraudulent purposes, at the time of the dissolution of marriage. See 57 Am. Jur. 2d Name § 41.

Missouri adopted the common laws of England which are of a general nature and which have not been invalidated, expressly or impliedly, by the U.S. or Missouri Constitution or the Missouri Statutes. See Matter of N~, 527 S.W. 2d 402 (Mo. App. 1975); Mo. Rev. Stat. § 1.010 (2002). Historically, the husband and wife customarily adopted the name of the spouse with the most property and since men typically held more property than women, most women took the husband's name. See Matter of N~, 527 S.W. 2d at 403. This custom never became law, and the English common law view was that a woman's surname was not bound to her marital status and arose only through her use of a name. See id. at 403-04. Moreover, the right to adopt another name was not limited to males or females. See id. at 404. "The concept that the husband and wife are one, the 'one' being the husband, has been abandoned." Id. "Insistence that a married couple use one name, the husband's, is equally outmoded." Id.

Driver's licenses are the primary State identification document. In Missouri, a marriage certificate is acceptable proof of a change of name for Missouri Driver's License and Motor Vehicle registration purposes. See Missouri Department of Revenue - How Do I, available at http://www.dor.state.mo.us/howdoi/married.htm (viewed 4/24/03). There is nothing in Missouri law or custom to prohibit a husband from adopting his wife's surname at the time of marriage.

In Kansas, the common law has also been adopted in a similar manner as in Missouri. See Kan. Stat. Ann. § 77-109 (2002). Courts in Kansas have long held that "it cannot successfully be denied that a person has a perfect legal right to call himself by any name he chooses, and so long as such name identifies him by reason of his being thus known in the community in which he resides, he would have a perfect right to sue and be sued by such name." Clark v. Clark, 19 Kan. 522 (1878). An individual may adopt any name different from his without fraudulent intent. See Sanders v. Sitton, 292 P. 2d 1099 (Kan. 1956). A name change can be accomplished without any sanction from the court, however, the statutory name change provisions are intended as aids and affirmations of the common law rule, and not as an abrogation or substitution for the informal procedure. See Matter of M~, 706 P.2d 480 (Kan. App. 1985). In Kansas, a certified marriage certificate is an acceptable document to change the surname on an individual's driver's license. See Kansas Department of Revenue, available at http://www.KSRevenue.org/dmvproof.htmwed 4/24/03). There is nothing in Kansas law or custom to prohibit a husband from adopting his wife's surname at the time of marriage.

Nebraska has likewise adopted the common law of England, to the extent that it is not inconsistent with the Constitution or other laws of the state. See Neb. Rev. St. § 49-101 (2002). "In general, in the absence of statutory prohibition, a person, without abandoning his real name, may adopt or assume any name, wholly or partly different from his name, by which he may become known, and by which he may transact business, execute contracts, and carry on his affairs, unless he does so in order to defraud others, or he is inhibited by judicial adjudication, since it is the identity of the individual that is regarded, and not the name which he may bear or assume." Fidelity & Deposit Co. of Md. v. Bodenstedt, 104 N.W.2d 292 (Neb. 1960) (quoting 65 C.J.S. Names § 9, p. 9.). In Nebraska, change of name statutes do not supersede the common law, but affirm that right and afford an additional opportunity to change names. See Simmons v. O'Brien, 272 N.W.2d 273 (Neb. 1978). In Nebraska, a certified marriage license is satisfactory to change the name on an individual's driver's license. See Nebraska Department of Motor Vehicles - Frequently Asked Questions, available at http://www.dmv.state.ne.us/dvr/faqwed 4/24/03). There is nothing in Nebraska law or custom to prohibit a husband from adopting his wife's surname at the time of marriage.

Telephone calls to Driver's License offices and County Treasurers in the States of Kansas, Missouri, and Nebraska, revealed that no office had any difficulty with changing the records of a husband's surname to his wife's surname upon presentation of a marriage certificate. It did not appear that this was an uncommon request.

We believe that it is proper to follow the procedures in POMS RM 00203.210 in each state within Region VII with regard to change of name because of marriage. There is no law in Missouri, Kansas, or Nebraska that prohibits a husband from adopting his wife's surname as his own at the time of marriage. Absent suspicions of fraud or misrepresentation, a recent marriage certificate is acceptable evidence for a name change in these states. In Iowa, the marriage license must list the name that the individual intends to use.

Please note that this opinion should not be considered precedential for other situations in which an individual wishes to change his or her name.

Frank V. S~III
Chief Counsel, Region VII
By__________
Bert W. C~
Assistant Regional Counsel

Footnotes:

[1]

No individual may adopt a name with the intent to defraud or misrepresent him or herself. By way of example, an individual may not be permitted to change his name to Santa Claus, because the public has a proprietary interest in the identity of Santa Claus, both in name and persona, and such a name would violate the common law as it would be misleading. See In re Name Change of H~, 736 N.E.2d 125 (Ohio Prob. 2000) (against public policy to grant name change to "Santa Claus").