TN 35 (02-15)

A. PR 15-059:  Utah Same-Sex Marriage – Name Change Guidance – REPLY

DATE: December 29, 2014

1. SYLLABUS

Accept marriage documents issued to same-sex couples for marriages that took place between December 20, 2013 and January 6, 2014, and October 6, 2014 or later by jurisdictions (town, county or State) in the State of Utah as evidence of a name change.

2. OPINION

Questions Presented

Utah issued same-sex marriage licenses between December 20, 2013, and January 6, 2014, and again beginning October 6, 2014. Should SSA accept marriage documents reflecting that a same-sex marriage occurred during these time periods as evidence of a name change event?

Short Answer

Yes. SSA should accept marriage documents reflecting that a Utah same-sex marriage occurred between December 20, 2013, and January 6, 2014, as evidence of a name change event.  SSA should also accept marriage documents reflecting that a Utah same-sex marriage occurred on October 6, 2014, and thereafter, as evidence of a name change event.

Background

On December 20, 2013, the United States District Court for the District of Utah issued a decision holding that Utah’s ban on same-sex marriage was unconstitutional. See Kitchen v. Herbert, 961 F.Supp. 2d 1181 (D. Utah 2013) (finding Utah Constitution, Art. 1, § 29 and Utah Code Ann. §§ 30-1-2, 30-1-4.1 unconstitutional)). From the date of this decision, and until January 6, 2014, when the United States Supreme Court stayed implementation of the decision pending appeal, Utah permitted samesex couples to marry. On January 10, 2014, United States Attorney General Eric Holder announced that the federal government would recognize as lawful the samesex marriages performed in Utah between December 20, 2013, and January 6, 2014. See Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah, United States Dep’t of Justice, Justice News, http://www.justice.gov/opa/pr/2014/January/14-ag-031.html (last visited September 18, 2014). Several months later, the Tenth Circuit Court of Appeals affirmed the Utah District Court’s finding that Utah’s samesex marriage ban was unconstitutional, but imposed a stay pending further appeal. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014). On October 6, 2014, the United States Supreme Court declined to hear the appeal, letting stand the Tenth Circuit’s decision that Utah’s ban on same-sex marriage was unconstitutional.  The same day, the Tenth Circuit lifted the previously imposed stay and Utah started issuing same-sex marriage licenses.

In addition, on May 19, 2014, the United States District Court for the District of Utah ruled in a separate case that Utah must recognize same-sex marriages solemnized between December 20, 2013, and January 6, 2014. See Evans v. Utah, 21 F.Supp. 3d 1192 (D. Utah 2014). The United States Supreme Court later stayed implementation of that decision pending the state’s appeal to the Tenth Circuit. See Herbert v. Evans, 135 S.Ct. 16 (2014).  However, following the United States Supreme Court’s action on October 6, 2014, the state voluntarily dismissed its appeal as moot.

Discussion

For SSA to process a name change, the applicant must submit evidence of: (1) a name change event; (2) the new name; and (3) the number holder’s identity as shown on the latest Numident record. See POMS RM 10212.015. This opinion focuses only on the first evidentiary requirement, the name change event. The POMS recognizes that marriages are name-change events. See POMS RM 10212.010. Moreover, SSA policy requires SSA to “[a]ccept same-sex marriage documents validly issued by a U.S. state, which permits ceremonial same-sex marriage as evidence of a name change.” ¹ POMS RM 10212.035. 

Pursuant to section D of POMS RM 10212.035, when a state legalizes same-sex marriage, the Regional Office should obtain a legal opinion from the Regional Chief Counsel requesting the following information, which we discuss below:

1. the date the State will begin issuing marriage licenses and certificates to same-sex couples;

2. whether the State permits parties to the same-sex marriage to change their names based on the marriage;

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.

1. The date the State will begin issuing marriage licenses and certificates to same-sex couples.

   Pursuant to Kitchen v. Herbert, 961 F.Supp. 2d 1181 (D. Utah 2013), Utah issued same-sex marriage licenses between December 20, 2013, and January 6, 2014, and beginning again on October 6, 2014. The Attorney General declared the Utah marriages that occurred between December 20, 2014, and January 6, 2014, would be “recognized as lawful” for purposes of federal law. And in Evans v. Utah, the district court held that the marriages occurring between these dates must be recognized. In light of these events, SSA should treat as valid same-sex marriages that occurred in Utah between December 20, 2013 and January 6, 2014, for the purpose of establishing a name-change event.  Likewise, in light of the now controlling federal court decision in Kitchen v. Herbert, SSA should also treat same-sex marriages that occurred in Utah on October 6, 2014, and thereafter as valid for purposes of establishing a name-change event. ²

2. Whether the State permits parties to the same-sex marriage to change their names based on the marriage.

   Utah permits parties to change their names based on marriage. In general, Utah allows an individual to change his or her name as long the individual meets a residency requirement and the name change is not being sought for a “wrongful or fraudulent purpose.” See Utah Code Ann. §§ 42-1-1, 42-1-2; In re Cruchelow, 926 P.2d 833, 834 (Utah 1996); In re Porter, 31 P.3d 519, 521 (Utah 2001). With regard to whether marriage documents support a request for a name change, the Utah marriage statutes do not specifically address this issue. See Utah Code Ann. §§ 30-1-1, et. al. However, Utah law does provide that a marriage certificate is sufficient proof of identity to change an individual’s name on his or her driver’s license. See Utah Code Ann. § 53-3-216(2)(a). Although this law does not specifically refer to same-sex marriages, the court decisions in Kitchen v. Herbert and Evans v. Utah hold that there can be no legal distinction between same sex married couples and opposite-sex married couples with respect to marriage under Utah law. Therefore, SSA should accept, as evidence of a name-change event, marriage documents reflecting that a same-sex marriage occurred in Utah between December 20, 2014, and January 6, 2014, or on October 6, 2014, and thereafter.

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

   Because Utah has never had a law authorizing or recognizing civil unions or domestic partnerships, this question is inapplicable.

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

   Because Utah has never had a law authorizing or recognizing civil unions or domestic partnerships, this question is inapplicable.

Conclusion

SSA should accept Utah marriage documents reflecting that a same-sex marriage occurred between December 20, 2013, and January 6, 2014, and on October 6, 2014, and thereafter as evidence of a name change event. 

John J. Lee
Regional Chief Counsel, Region VIII
By__________
Alexess Rea
Assistant Regional Counsel

B. PR 12-033 Legality of New First Name Based on Marriage in the State of Utah as a Basis for Legal Name Change, NH – Tree – REPLY

DATE: December 20, 2011

1. SYLLABUS

A certificate of marriage issued by the State of Utah is not acceptable evidence of a legal change to the first name because Utah does not have a statute that expressly allows a first name to be changed in the event of marriage.

2. OPINION

Questions Presented

You asked whether, under Utah law, a person may change their first name upon marriage.

Short Answer

There is no Utah statute expressly or implicitly allowing an individual to change his or her first name solely based on marriage. Therefore, the agency may not accept the marriage certificate as evidence that the NH legally changed her first name from Teresa to Tree.

Background

According to the information you provided, the NH desires a Social Security card displaying the name “Tree.” The NH was born Teresa, and has also used the names Teresa and Teresa. She married Terrence, on November 20, 2004. On her marriage license, her prior name appears as “Tree.” ³ After her marriage, the NH obtained a U.S. passport in July 2005 and a Utah driver’s license in May 2009, both displaying the name “Tree .”

Discussion

In general, a NH seeking to change a name on the numident must present (1) evidence of a name change event; (2) evidence of the new name; and (3) evidence of the NH’s identity. POMS RM 10212.055. A ceremonial marriage performed in the United States qualifies as a name change event. POMS RM 10212.010, 10212.025. On October 21, 2004, Tree married Terrence in a ceremony performed by a bishop, which qualifies as a name change event. POMS RM 10212.055(A).

The NH must also provide evidence of the new name. The agency will “[a]ccept a name change document based on marriage . . . as evidence of the new name to be shown on the card, if the new name can be derived from the document.” POMS RM 10212.055. Where the bride takes the groom’s last name in place of her own, the name can be derived from the document. In the present case, the groom’s name is listed as “Terence,” and the bride’s name is listed as “Tree .” Thus, it appears that the new name can be derived from the name change document (the marriage certificate) – i.e., Tree could change her last name to Tree. POMS RM 10212.055(B).

Tree , however, is not the name on the numident. Rather, the NH seeks to use the marriage certificate as evidence of an entirely new first and last name, which is acceptable only if permitted under statutory law. See POMS RM 10212.055(B) (Exception).

In Utah, there is no statute expressly allowing a person to assume a new first name solely based on a marriage event. See UTAH CODE ANN. § 30-1-7 (marriage licenses), 30-1-8 (application for license). ⁴ The only Utah statute addressing name change in the context of marriage is the Uniform Driver’s License Act, which allows a person to change his or her surname on his or her driver’s license by presenting his or her marriage license as proof of a surname change. UTAH CODE ANN. § 53-3-216. ⁵ Therefore, the marriage certificate is not acceptable evidence of the NH’s new name.

Conclusion

Utah does not have a statute that allows an individual to choose an entirely new first name based on marriage. As such, the marriage certificate is not acceptable evidence of the requested name change from Teresa to Tree .

John J. Lee
Regional Chief Counsel, Region VIII
By__________
M. Thayne Warner
Assistant Regional Counsel

Footnotes:

[1]

The POMS further explain that “the term ‘marriage records’ refers to the original marriage record kept by the official custodian. ‘Marriage documents’ refers to the means by which a marriage record is documented.  Marriage certificates, souvenir certificates, and certified copies of marriage records are considered marriage documents and acceptable evidence of a name change.”  POMS RM 10212.025.

[2]

If you encounter a situation in which a marriage license was issued between December 20, 2013, and January 6, 2014, but the marriage did not occur until sometime between January 7, 2014, and October 5, 2014, please seek a legal opinion from the Regional Chief Counsel. 

[3]

Utah marriage licenses do not display the husband’s or wife’s new married name, only their names prior to the marriage.

[4]

Some states expressly allow a person to designate a new legal name at the time of marriage. See, e.g., KAN. STAT. ANN. § 23-2506 (2011), discussed in POMS PR 02712.019 Kansas. Other states require that parties to a marriage include on the license application the full name by which they will be known after marriage; OGC has previously advised that such statutes allow either party to assume a completely new full name upon marriage. See, e.g., POMS PR 02712.026 Minnesota. There is no similar statute in Utah.

[5]

In light of this statute, it is not clear how the NH obtained a Utah driver’s license displaying the name “Tree .” It is also unclear how the NH obtained a U.S. passport with this name. Under Utah law, an individual may petition the court for a name change, but we have no evidence that the NH has done so. See UTAH CODE ANN. § 42-1. And Utah common law may still recognize an individual’s general common-law right to a name change, see In re C~, 926 P.2d 833, 834 (Utah 1996), but SSA does not recognize a name change based merely on a common law right. POMS RM 10212.055.