TN 7 (07-11)

A. PR 11-132 Evidence of Name Change Based on New York State Law Authorizing Same-sex Marriage in New York  

DATE: July 18, 2011

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place on 07/24/2011 or later by jurisdictions (town, county or State) in New York as evidence of a name change

2. OPINION

New York permits parties to a marriage to change their names based upon their marriage, if they choose to do so. New York’s Marriage Equality Act conveys the same right to parties entering into a same-sex marriage, effective July 24, 2011.

BACKGROUND

This memorandum is in response to your request for an opinion pursuant to POMS RM 10212.35.D, “Evidence of Name Change Based on a U.S. Same-Sex Marriage.”  That section of the POMS provides that when a state legalizes same-sex marriages, the Regional Office should obtain an opinion from the Regional Chief Counsel.

On June 24, 2011, the State of New York enacted the Marriage Equality Act, Ch. 95, 2011 Sess. Law News of N.Y. (West 2011), amended by Act of June 24, 2011, 2011 Sess. Law News Of New York, Ch. 96 (West 2011). The Marriage Equality Act provides that marriages of same-sex couples and different-sex couples be treated equally in all respects under the laws of New York State. Id. at Sec. 2.

 The POMS RM 10212.35.D requires the Regional Office to obtain a Regional Chief Counsel precedent opinion requesting the following information: (1) whether the state permits parties to the same-sex marriage to change their names based on the marriage; (2) the date the state will begin issuing marriage licenses and certificates to same-sex couples; (3) any change to the status of prior or new civil union or domestic partnership entered into in the same State; and, (4) whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage.

ANALYSIS

1. Whether New York State permits parties to a same-sex marriage to change their names based on the marriage?

Yes. The Marriage Equality Act provides that “same-sex couples should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage” and be “treated equally in all respects under the law.” 2011 Sess. Law News of N.Y. Ch. 95, Sec. 2 (West 2011). Accordingly, laws that relate to name changes pursuant to a different-sex marriage are applicable to a same-sex marriage.

With respect to name changes in the context of a marriage in New York State, a marriage license application must inform the applicants that New York State law provides that every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud. N.Y. Dom. Rel. Law § 15(b) (1) (McKinney 2011); N.Y. Civ. Rights Law § 65(4) (McKinney 2009).

Further, although entering into a marriage does not automatically change one’s surname in New York, either party to the marriage may elect to change his or her surname. N.Y. Dom. Rel. Law §§ 15(b) (2)-(3) (McKinney 2011). One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the marriage by entering the new name in the appropriate space provided on the marriage license. The new name must consist of one of the following options as offered on the marriage license application:

• the surname of the other spouse;

• any former surname of either spouse;

• a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse;

• a combination name separated by a hyphen, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses.

Id.; see N.Y. Civ. Rights Law § 65(1) (McKinney 2009).

2. The date New York will begin issuing marriage licenses and certificates to same-sex couples.

The effective date of the Marriage Equality Act is 30 days after its enactment on June 24, 2011. Marriage Equality Act § 6. Thus, that Act becomes effective on July 24, 2011. In New York City, Offices of the Clerk will be open on that date, which is a Sunday, and marriage licenses will be issued to same-sex couples commencing on Sunday July 24, 2011. New York City Clerk’s Office - Marriage Office of the City Clerk, City of New York Marriage Bureau (available at www.cityclerk.nyc.gov/html/marriage/same_sex_coulples_faq.shtml) (last visited on July 13, 2011). Additionally, although New York State requires a 24-hour waiting period after the license is issued, that requirement can be waived by an order from a judge, N.Y. Dom. Rel. Law § 14-b (McKinney 2011), and several state judges have volunteered to be available in New York City to consider waiving the waiting period and to perform wedding ceremonies. City Clerk’s Office, supra. The New York Times also reported that in the cities of Binghampton and Syracuse, and possibly other places in the State, Clerk’s offices will be open on July 24, 2011.

Thomas K~ and Javier C. H~, City Setting Sunday Hours to Grant Gay Unions, N.Y. Times, July. 6, 2011, at B1. www.nytimes.com/2011/07/07/nyregion/city-setting-sunday-hours-to-grant-gay-unions.html (last visited July 11, 2011).

3. Any change to the status of prior or new civil union or domestic partnership entered into in the same state?

New York law does not provide for civil unions.

With respect to domestic partnerships, New York State law provides limited circumstances in which a domestic partnership is applicable. State law gives “domestic partners” rights for hospital visitation, N.Y. Public Health Law § 2805-q (McKinney’s 2011), decisions regarding organ donation, N.Y. Public Health Law § 4351 (McKinney’s 2011), and decisions about the disposal of bodily remains. N.Y. Public Health Law § 4301 (McKinney’s 2011). Also, in an exception to the Workers’ Compensation Law, benefits are available to surviving domestic partners of employees killed during the terrorist attacks of September 11, 2001. N.Y. Workers’ Comp. Law § 4 (McKinney 2009).

New York City’s Domestic Partnership Law incorporates certain Executive Orders. N.Y.C. Admin. Code § 3-240 (West 2011). Those Orders provide that City employees and residents who are domestic partners are eligible for visitation rights in City hospitals and correction facilities; 2) that City employees who have registered domestic partnerships are eligible for child care leave and bereavement leave on the same basis as employees with regard to their spouses; and, 3) that registered domestic partnership is evidence of the right to succession to tenancy in New York City housing. N.Y.C. Admin. Code § 3-240 et seq. The New York City Domestic Partnership law provides that the domestic partnership terminates upon filing of a termination statement with the city clerk or upon marriage of one of the parties. N.Y.C. Admin. Code § 242a-b (West 2011).

Additionally, there are several municipalities in New York that have enacted domestic partnerships. These include the “city of Albany, town of Ithaca, town of East Hampton, town of Southampton, town of Southold, town of Huntington, city of Rochester, county of Suffolk and county of Westchester.” It appears that these laws do not provide extensive benefits. Id. The termination procedures are different in many of these laws. Some of the municipalities adopting the domestic partnership indicate that the partnership terminates automatically with marriage to a third party. In the city of Albany, N.Y., parties may enter into a domestic partnership if they are not married, and they may terminate it when the parties no longer live together. Albany New York Code §§ 245-12, 245-13 (1995) (available at www.ecode360.com.html ) (last visited on July 11, 2011). The domestic partnership section in the code of Southhampton, New York requires that the parties not be married to another individual, and that if a change in status occurs, they will file a termination statement. Southampton Town Code, Chapter 152 (available at www.southamptontownny.gov.html) (last visited on July 11, 2011). Both Rockland and Suffolk Counties indicate that nothing in their law supersedes, alters, affects, or conflicts with any applicable state or federal statute, laws, regulations, or rules. Suffolk County, Res. No. 343-2006; Rockland County, Loc. Law No. 9. As to laws which contain such a provision similar to that of Rockland or Suffolk County, the Marriage Equality Act clearly would prevail in the event of a conflict. The Marriage Equality Act, however, is silent upon the impact of same-sex marriage upon domestic partnerships. Therefore, it is unclear what, if any, impact the Marriage Equality Act will have upon local laws that do not contain a provision similar to Rockland or Suffolk Counties.

4. Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage?

As there are no civil unions in New York, this question is inapplicable as it pertains to civil unions. With respect to domestic partnership, New York’s Marriage Equality Act does not have language regarding whether a couple must dissolve a prior domestic partnership before entering into a same-sex marriage. Accordingly, a domestic partnership may or may not dissolve as a result of marriage.

Conclusion

Based on the above analysis, we conclude New York State permits name changes as a result of same-sex marriages performed in New York effective July 24, 2011. 

Dinah L~,
Deputy Director, CP