PR: Title II Regional Chief Counsel Precedents
TN 38 (04-15)
A. PR 15-104 Name Change Based on Same-Sex Marriages Beginning October 10, 2014 – North Carolina
DATE: March 31, 2015
1. SYLLABUS
Accept marriage documents issued to same-sex couples for marriages that took place on October 10, 2014 or later by jurisdictions (town, county or State) in the State of North Carolina as evidence of a name change.
2. OPINION
QUESTIONS
We are providing this advice in accordance with the Program Operations Manual System (POMS) RM 10212.035, Evidence of a Name Change based on a U.S. Same-Sex Marriage. Section D of POMS RM 10212.035 provides that when a state legalizes same-sex marriages, the Regional Chief Counsel should provide an opinion regarding the following information:
the date the State will begin issuing marriage licenses and certificates to same-sex couples;
whether the State permits parties to the same-sex marriage to change their names based on the marriage;
any change to the status of a prior or new civil union or domestic partnership entered into in the same State; and
whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage.
OPINION
The Social Security Administration (SSA) may accept marriage documents issued by North Carolina for same-sex marriages that took place on or after October 10, 2014, as evidence for a name change. North Carolina began issuing marriage licenses to same-sex couples on October 10, 2014, and it appears an individual may change his/her name based on a same-sex marriage. The remaining questions do not apply because North Carolina does not recognize civil unions or domestic partnerships.
BACKGROUND
Effective November 7, 2014, SSA updated POMS GN 00210.003 to reflect that North Carolina currently permits and recognizes same-sex marriages as of October 10, 2014. This opinion only discusses the legality of name changes based on same-sex marriages in North Carolina that occurred on or after October 10, 2014. Same-sex marriages that occurred before October 10, 2014, require a separate opinion.
DISCUSSION
Under Social Security regulations, a number holder may ask SSA to change his records, including his name. See 20 C.F.R. §§ 401.65, 422.110 (2014). 1 The number holder must present convincing documentary evidence to justify a change in his records. See 20 C.F.R. §§ 422.107, 422.110(a). For SSA to process a name change, the number holder must provide evidence of the name change event, a new name, and the number holder’s identity on the latest Numident record. 2 See 20 C.F.R. § 422.107(a), (c); POMS RM 10210.015(A); POMS RM 10212.015(A). SSA recognizes a number of events as basis for a name change, including a ceremonial marriage. See POMS RM 10212.010.
The Social Security Administration (SSA) accepts all marriage documents issued by a State as evidence for name change based on marriage. See POMS RM 10212.025. SSA also will accept a name-change document based on marriage as evidence for the new last name for the Numident if SSA can derive the new name from the document. See POMS RM 10212.055(B). A marriage document is the means by which the official records custodian documents a marriage record. See POMS RM 10212.025. A marriage record is the original marriage record kept by the official custodian. See id. Marriage certificates, souvenir certificates, and certified copies of marriage records are marriage documents and acceptable evidence for a name change. See id. In determining whether the document submitted is acceptable for a name change, SSA generally follows State statutes. See POMS RM 10212.015(B).
North Carolina’s Constitution provides, “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” N.C. Const. art. XIV, § 6. Similarly, a North Carolina statute states, “A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry . . . .” N.C. Gen. Stat. Ann. § 51-1.
North Carolina is within the jurisdiction of the Fourth Circuit Court of Appeals. See 28 U.S.C. § 41. The Fourth Circuit, in Bostic v. Schaefer, 760 F.3d 352, 367-70, 384 (4th Cir. 2014), addressed whether similar constitutional and statutory bans against same-sex marriages in Virginia violated the Federal Constitution. The Court held that Virginia’s constitutional and statutory bans violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Federal Constitution to the extent they prevented same-sex couples from marrying and prohibited Virginia from recognizing same-sex couples’ lawful out-of-state marriages. See id. at 384. The United States Supreme Court denied certiorari on October 6, 2014. See Schaefer v. Bostic, --- U.S. ---, 135 S. Ct. 308 (2014); McQuigg v. Bostic, --- U.S. ---, 135 S. Ct. 314 (2014); Rainey v. Bostic, --- U.S. ---, 135 S. Ct. 286 (2014).
On October 10, 2014, the United States District Court for the Western District of North Carolina, in General Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790, 791 (W.D. N.C. 2014), held that in light of the Fourth Circuit’s decision in Bostic, North Carolina’s laws prohibiting same-sex marriages were unconstitutional as a matter of law. Specifically, the District Court held,
“Article XIV, Section 6 of the North Carolina Constitution, North Carolina General Statute § 51-1 et seq., and any other source of state law that operates to deny same-sex couples the right to marry in the State of North Carolina, prohibits recognition of same-sex marriages lawfully solemnized in other States, Territories, or a District of the United States, or threatens clergy or other officiants who solemnize the union of same-sex couples with civil or criminal penalties, are, in accordance with Bostic, supra, unconstitutional as they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.” Id.
The court permanently enjoined State officials from enforcing the laws to the extent they prohibited same-sex marriages or prohibited recognition of lawful out of State same-sex marriages. Id. at 792. Thereafter, on October 14, 2014, the Middle District of North Carolina similarly found North Carolina’s laws prohibiting same-sex marriages unconstitutional and enjoined the State, the Attorney General, and all officers, agents, and employee of the State from enforcing N.C. Const. art. XIV, § 6 and the statutes preventing same-sex couples from marrying and prohibiting the recognition of same-sex couples’ lawful out of State marriages. See Fisher-Borne v. Smith, 14 F. Supp. 3d 695, 698 (M.D.N.C. 2014).
In light of the Fourth Circuit and District Court decisions discussed above, North Carolina now permits and recognizes same-sex marriages. 3 Specifically, in light of the Bostic decision, North Carolina’s Attorney General announced he would no longer defend the State’s same-sex marriage ban. 4 The Governor of North Carolina also indicated his administration was moving forward on executing the District Court’s ruling in General Synod of the United Church of Christ .5 Accordingly, SSA may accept marriage documents issued by North Carolina for same-sex marriages that took place on or after October 10, 2014, as evidence for a name change. Consistent with North Carolina’s current recognition of same-sex marriages, SSA’s POMS provides SSA will accept marriage documents issued to same-sex couples for marriages that took place on October 10, 2014, or later by jurisdictions (town, county, or State) in the State of North Carolina as evidence for a name change. See POMS RM 10212.035(A)(23). Below, we address the specific questions provided in POMS RM 10212.035D.
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The date the State will begin issuing marriage licenses and certificates to same-sex couples.
North Carolina began issuing marriage licenses to same-sex couples on October 10, 2014. The District Court in General Synod of the United Church of Christ, 12 F. Supp. 3d at 792 permanently enjoined State officials from enforcing the laws prohibiting same-sex marriages beginning October 10, 2014. The Register of Deeds in at least two counties kept their offices open late October 10, 2014, to begin issuing marriage licenses to waiting couples.6
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Whether the State permits parties to the same-sex marriage to change their names based on marriage.
North Carolina has a civil process for a name change in which a party can petition for a court-ordered name change pursuant to N.C. Gen. Stat. Ann. §§ 101-2, 101-3, 101-4, 101-5. North Carolina statutes do not expressly authorize a name change following marriage using only the married name and production of a marriage certificate. However, the North Carolina Department of Motor Vehicles (DMV) permits an individual to change his name on his driver’s license if he presents a certified marriage certificate issued by a governmental agency and the individual has already changed his name with SSA.7 The DMV appears to make no distinction between same-sex and opposite-sex marriages. See id. Because the North Carolina DMV allows name changes based on a marriage certificate and does not also require documented proof from a court or the Register of Deeds to establish a name change, it seems like a marriage certificate would be sufficient to change a name.
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Whether there is any change in the status of a prior or new civil union or domestic partnership entered into in North Carolina.
While municipalities may offer benefits to domestic partners, 8 North Carolina law does not provide for civil unions or domestic partnerships. Prior to the decisions in Bostic and General Synod of the United Church of Christ, the North Carolina Constitution provided that “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” N.C. Const. art. XIV, § 6 (emphasis added). Thus, this question does not apply in North Carolina.
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Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage.
As North Carolina law does not provide for civil unions or domestic partnerships, this question does not apply in North Carolina.
CONCLUSION
Based on the above legal authority, North Carolina permits same-sex marriages as of October 10, 2014. Thus, SSA may accept marriage documents issued by North Carolina for same-sex marriages that took place on or after October 10, 2014, as evidence for a name change. For requests for name changes based on same-sex marriages that occurred prior to October 10, 2014, SSA should request a legal opinion from OGC.
Sincerely,
Mary Ann Sloan
Regional Chief Counsel
By: ___________________
Laura Verduci
Assistant Regional Counsel
All County Letter 08-25.
B. PR 13-080 State Laws in Region IV Concerning Changing a First Name in the Event of Marriage
DATE: February 17, 2012
1. SYLLABUS
SSA does not accept a marriage document from the states of South Carolina, Alabama, Florida, Georgia, Kentucky, Mississippi and North Carolina as acceptable evidence for changing an individual’s first name in the event of marriage because these states do not have statutes specifically allowing an individual to change his or her first name in the event of marriage.
2. OPINION
We conclude SSA should not recognize marriage as a valid name-change event in South Carolina, for a number holder wishing to change her first name because South Carolina does not have a statute expressly allowing a first-name change in the event of marriage. Most of the states in this region follow the common law rule allowing a person to change his or her first name in the event of marriage (or at any other time). However, Social Security policy requires a state statute expressly allowing change of one’s first name based on a marriage, before a marriage can provide a basis for first-name change for Social Security purposes.
BACKGROUND
K~ , the number holder (NH), married J~ in South Carolina on August 9, 2011. On November 7, 2011, NH filed an SS-5 application to change her name from K~ to S~. In support of her application for a name change, NH submitted a copy of her South Carolina marriage certificate dated August 12, 2011 The marriage certificate does not specify the new name NH requests.
, a copy of her current Social Security card issued in the name of K~, and a copy of her South Carolina driver’s license issued in the name of K~ . According to the information we received, NH did not provide any evidence that she legally changed her first name from K~ to S~.
DISCUSSION
For SSA enumeration purposes, a legal name consists of a first name and a last name. See Program Operations Manual System (POMS) RM 10212.001(A). SSA recognizes a number of events as the basis for a name change, including marriage. See POMS RM 10212.010. To process a name-change request, SSA must obtain evidence of a name-change event, evidence of a new name, and evidence of the number holder’s identity. The Intelligence Reform and Terrorism Prevention Act requires SSA to “establish minimum standards for verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card . . . .” Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 7213(a)(1)(B); see POMS RM 10210.001, RM 10210.405(B). "In name change situations, the applicant must submit the name change document (the document that shows the name change event)." POMS RM 10210.001. See POMS RM 10212.015(A). SSA generally considers an acceptable name-change document evidence of the name-change event. See POMS RM 10212.015(B). In determining whether the document submitted is acceptable for a name change, SSA does not follow common law. See id. Instead, SSA generally follows State statutory law. See id.
SSA obtains the new name from the name-change document except when the name change is based upon an event such as a marriage. See POMS RM 10212.015(C). "Marriage certificates, souvenir certificates, and certified copies of marriage records are considered marriage documents and acceptable evidence of a name change." POMS RM 10212.25. SSA will accept a name-change document based on marriage as evidence of the new name for the Social Security card if the new name can be derived from the document. See POMS RM 10212.055(B). However, SSA generally only permits changes to the last name using the names shown on the marriage document. See id. SSA will change an individual's first and last name as shown on a name-change document (e.g., a marriage certificate) only if State statutory law states the name-change document is acceptable evidence of a change to the individual's first and last name. See id. (Exception).
Therefore, we researched the statutory law of the States in Region IV to determine whether each State would recognize a marriage certificate or other marriage document as acceptable evidence to change an individual's first name. Below is a discussion for each State, presented alphabetically. We discuss NH's specific situation in the South Carolina section.
ALABAMA:
We did not find any Alabama statute that expressly allows an individual to change his or her name based on marriage. Alabama follows the common law principle allowing a person to adopt what name he or she pleases, if the change is not for fraudulent purposes. See State v. Taylor, 415 So. 2d 1043, 1046-48 (Ala. 1982). Alabama also allows a person to petition for a change of name in probate court. See Ala. Code § 12-13-1(b)(10) (2011). A person may change his name by filing with the court a signed written declaration stating his old and new names. See id.; Esco v. Alabama, 179 So. 2d 766, 770 (Ala. 1965). Because Alabama does not have a statute expressly allowing a person to change his or her first or full name in the event of marriage, an Alabama marriage document would not be acceptable evidence to allow SSA to change a number holder's first name.
FLORIDA:
We did not find any Florida statute that expressly allows an individual to change his or her name based on marriage. Florida follows the common law by allowing a person to adopt a name other than his or her own, in the absence of a fraudulent or wrongful purpose. See Isom v. Circuit Court of the Tenth Judicial Circuit, 437 So. 2d 732, 733 (Fla. Dist. Ct. App. 1983). Florida also allows a person to petition for a change of name in the chancery court in the county in which he or she resides. See Fla. Stat. § 68.07 (2011). “A facially sufficient petition for name change should be granted in the absence of evidence of a wrongful or fraudulent purpose.” In re Name Change Petition of M~, 892 So. 2d 1214, 1214 (Fla. Dist. Ct. App. 2005). Because Florida does not have a statute expressly allowing a person to change his or her first or full name in the event of marriage, a Florida marriage document would not be acceptable evidence to allow SSA to change a number holder's first name
GEORGIA:
Georgia requires an applicant to provide his or her full present name when applying for a marriage license. See Ga. Code Ann. § 19-3-33 (West 2011). The application also directs applicants to designate the surnames they will use as their legal surnames after the marriage is consummated. See Ga. Code Ann § 19-3-33.1 (West 2011). The spouse may use as his or her legal surname or the name of his or her spouse. Id. Georgia law also allows a person who wants to change his or her name to file a petition in the superior court of the county of his or her residence. See Ga. Code Ann § 19-12-1 (West 2011). Georgia law specifically does not allow a person to change his or her name to fraudulently deprive another of any right under the law. See Ga. Code Ann § 19-12-4 (West 2011). The superior court may grant or deny an application for name change based solely on a sound legal discretion. See Binford v. Reid, 63 S.E.2d 345, 346 (Ga. Ct. App. 1951). Accordingly, an individual applying for a marriage license in Georgia may change his or her surname, but Georgia statutes do not appear to allow an individual to change his or her first name when applying for a marriage license. Thus, because Georgia does not have a statute expressly allowing a person to change his or her first name in the event of marriage, a G~ marriage document would not be acceptable evidence to allow SSA to change a number holder's first name.
KENTUCKY:
We did not find any Kentucky statute that expressly allows an individual to change his or her name based on marriage. Kentucky "recognizes the common law right of any person to informally change their name by public declaration." Burke v. Hammonds, 586 S.W.2d 307, 308 (Ky. Ct. App. 1979). Kentucky also allows any person at least eighteen years of age to change his or her name in the district court of the county in which he or she resides. See Ky. Rev. Stat. Ann. § 401.010 (West 2011). This statute does not abrogate the common law, but merely insures that a permanent record is made of the name change. See B~, 586 S.W.2d at 308. A Kentucky marriage license must include vital information for each party, including the full name of each party. See Ky. Rev. Stat. Ann. § 402.100(1) (2011). The marriage certificate also requires a statement including the names of the persons married. See Ky. Rev. Stat. Ann. § 402.100(2)(a) (West 2011). Neither the marriage license nor the marriage certificate appear to require the names of the parties after the marriage is completed. See Ky. Rev. Stat. Ann. § 402.100 (West 2011). Because Kentucky does not have a statute expressly allowing a person to change his or her first name in the event of marriage, a Kentucky marriage document would not be acceptable evidence to allow SSA to change a number holder's first name
MISSISSIPPI:
We did not find any Mississippi statute that expressly allows an individual to change his or her name based on marriage. Mississippi law provides, "at common law, any person of mature years may voluntarily change his name, without necessity of statute, provided the change was not for fraudulent purpose and does not interfere with the rights of others." Marshall v. Marshall, 93 So. 2d 822, 826 (Miss. 1957). Mississippi also allows a person to petition the chancery court to alter his or her names, but the statute is silent on what evidence, if any, is required for a person to change his or her name. See Miss. Code Ann. § 93-17-1 (West 2011). An application to obtain a Mississippi marriage license requires the parties to include their names and other information, but Mississippi law does not require that the application or the marriage license or certificate include the names the parties would use after the marriage. See Miss. Code Ann. § 93-1-5(a) (West 2011). Because Mississippi does not have a statute expressly allowing a person to change his or her first name in the event of marriage, a Mississippi marriage document would not be acceptable evidence to allow SSA to change a number holder's first name
NORTH CAROLINA:
We did not find any North Carolina statute that expressly allows an individual to change his or her name based on marriage. See N.C. Gen. Stat. § 51-8; 51-16 (West 2011). North Carolina follows the common law by allowing a person to adopt another name at will, absent a fraudulent or illegal purpose. See State of North Carolina v. Johnson, 690 S.E. 2d 707, 709 (N.C. Ct. App. 2010). North Carolina also provides a judicial process for a name change. See N.C. Gen. Stat. § 101-2 (West 2011); however, this procedure does not abrogate the common law. See In re M~, 216 S.E. 2d 147, 150 (N.C. 1975). An application to obtain a North Carolina marriage license requires the full names of both applicants, but does not identify the names the parties will use after the marriage is completed. See N.C. Gen. Stat. §§ 51-8, 51-16 (West 2011). Because North Carolina does not have a statute expressly allowing a person to change his or her first or full name in the event of marriage, a North Carolina marriage document would not be acceptable evidence to allow SSA to change a number holder's first name
SOUTH CAROLINA:
We did not find any South Carolina statute that expressly allows an individual to change his or her name based on marriage. See S.C. Code Ann. § 20-1-220 (2011). South Carolina follows the common law by allowing a person to change his name without the intervention of Court or Legislature. See Brayton v. Beall, 53 S.E. 641, 642 (S.C. 1906) (holding court ordered name changes fix the time of a name change with some certainty, but they do not affect the common law right of a person to change his or her name). South Carolina also allows a person to petition for a change of name in family court. See S.C. Code Ann. § 15-49-10 (2011). An application to obtain a South Carolina marriage license requires the names of both applicants, but does not identify the names the parties will use after the marriage is completed. See S.C. Code Ann. § 20-1-220 (2011). Because South Carolina does not have a statute expressly allowing a person to change his or her first or full name in the event of marriage, a South Carolina marriage document would not be acceptable evidence to allow SSA to change a number holder's first name. Consequently, NH’s marriage certificate would not be acceptable evidence of a valid namechange event and SSA would not be able to process a first name change for NH.
TENNESSEE:
We did not find any Tennessee statute that expressly allows an individual to change his or her name based on marriage. See Tenn. Code Ann. § 36-3-103 (West 2011). Tennessee follows the common law by allowing a person to use any name he or she chooses, without fraudulent purposes. See In re J~, 87 S.W. 3d 513, 515 (Tenn. Ct. App. 2002). Tennessee also allows a person to petition for a change of name in the circuit, probate, and county courts. See Tenn. Code Ann. § 29-8-101 (West 2011). An application to obtain a Tennessee marriage license requires the names of both applicants, but does not identify the names the parties will use after the marriage is completed. See Tenn. Code Ann. § 36-3-103 (West 2011). Because Tennessee does not have a statute expressly allowing a person to change his or her first or full name in the event of marriage, a Tennessee marriage document would not be acceptable evidence to allow SSA to change a number holder's first name.
CONCLUSION
NH’s marriage certificate is not an acceptable document for changing NH's first name because South Carolina does not have a statute that expressly provides for such a change in the event of marriage. Additionally, SSA should not recognize marriage documents from the other Region IV States as acceptable evidence for changing an individual's first name because these States also do not have statutes specifically allowing an individual to change his or her first name in the event of marriage.
Sincerely,
Mary Ann Sloan
Regional Chief Counsel
By: ___________________
Natalie K. Jemison
Assistant Regional Counsel
All County Letter 08-25.
Footnotes:
All references to 20 C.F.R. and State statutes are to the 2014 editions.
“A Numident is a query display of the information taken from an individual’s application for an original SSN card and subsequent applications for replacement SSN cards.” POMS GN 03325.025(A).
One may question whether the Fourth Circuit and District court decisions are binding on any same-sex marriages other than the marriages at issue in those cases. As discussed above and below, regardless of whether the Federal court decisions are binding, the State’s Attorney General and Governor have acquiesced to the decisions and the State is now issuing marriage licenses to same-sex couples.
See NC to stop defending marriage amendment (July 28, 2014), http://www.wral.com/nc-to-stop-defending-marriage-amendment/13846324/ (last visited Dec. 4, 2014); Same Sex marriage ban overturned in North Carolina (Oct. 10, 2014), http://www.cbsnews.com/news/same-sex-marriage-ban-overturned-in-north-carolina/ (last visited Dec. 4, 2014).
See Same-Sex Marriage Now Legal in North Carolina (October 11, 2014), http://abc11.com/politics/same-sex-marriage-now-legal-in-north-carolina/345114/ (last visited Dec. 4, 2014).
See Judge Strikes down North Carolina’s gay marriage ban (Oct. 10, 2014), http://www.wcti12.com/news/republican-leaders-try-to-stop-nc-gay-weddings/29050808 (last visited Dec. 22, 2014); Gay Marriage now legal in North Carolina (Oct. 10, 2014), http://www.newsobserver.com/2014/10/10/4222691/the-wait-for-gay-marriage-in-north.html (last visited Dec. 22, 2014).
See If your name changes, http://www.ncdot.gov/dmv/driver/renewal/ (last visited Dec. 22, 2014).
See UNC School of Government Weighs in on Amendment One Impact to Domestic Partner Benefits, http://equalitync.org/latest/news/unc_school_of_government_weighs_in/ (last visited Dec. 23, 2014).