The state statutes of Illinois, Indiana, Michigan Minnesota, Ohio, and Wisconsin do not expressly address the married person's right to change his or her name. However, each of these states follows the common-law rule that anyone is free to change his or her name without resort to the courts, so long as the individual is not changing the name for fraudulent purposes. As such, either party to a legal marriage may change his or her last name to the other party's last name, or change his or her last name to an agreed-upon different last name, so long as the motive for the change is free of fraud.

You asked whether, under state law, proof of marriage (a marriage license) alone would be sufficient documentation for a married couple to adopt either party's surname, a hyphenated version of their names, or a different name altogether. For the reasons that follow, we believe that, in each of the six states comprising our region (Illinois, Indiana, Ohio, Michigan, Minnesota, and Wisconsin), a married couple or either member of the couple may take any last name of his or her choosing, so long as the person is not taking that name for fraudulent reasons.

DISCUSSION

Introduction

The state statutes of the states at issue contain no express language addressing a married individual's right to change his or her name. However, each of the states has adopted the common-law rule that anyone is free to change his or her name without resort to the courts, so long as the individual is not changing the name for fraudulent purposes. As such, we believe that either party to a legal marriage may change his or her last name to the other party's last name, or that each party can change his or her last name to an agreed-upon different last name, so long as the motive for the change is free of fraud.

Illinois

In Illinois, it appears that a married couple can take any last name of their choosing. The Illinois Supreme Court has held: “At common law, and in the absence of statutory restriction, an individual may lawfully change his name without resort to any legal proceedings, and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth.” Reinken v. Reinken, 184 N.E. 639, 640 Ill. (1933). Furthermore, the Illinois statute that provides a procedure by which a name change may be accomplished by court decree is “not exclusive but [is] merely permissive, and [it does] not abrogate the common law right of the individual to change his name without application to the courts.” Id. Since Illinois has no statute to the contrary, a married individual may choose any last name, so long as the individual is not doing so for fraudulent purposes.

Indiana

In Indiana, it appears that a married couple can take any last name of their choosing. Relying entirely on the Indiana Supreme Court's holding in Petition of Elizabeth Marie Hauptly, 312 N.E.2d 857 (1974), the Indiana appellate court held: “At common law and today, in the absence of a statute to the contrary, an individual may change his name at will so long as the change is not effected for a fraudulent purpose.” D.R.S. v. R.S.H, 412 N.E.2d 1257, 1262 (1980). Furthermore, the Indiana statute that provides a procedure by which a name change may be accomplished by court decree “does not repeal the common law rule; it merely furnishes an additional method of effecting a name change.” Since Indiana has no statute to the contrary, a married individual may choose any last name, so long as the individual is not doing so for fraudulent purposes.

Michigan

In Michigan, it appears that a married couple can take any last name of their choosing. The Michigan appellate court has held:

Under the common law a person may adopt any name he or she wishes, without resort to any court and without any legal proceedings, provided it is not done for fraudulent purposes. There is no requirement that any person go through the courts to establish a legal change of name. . . .In Michigan, as in most states, a statute authorizes procedures by which a court can, upon petition, change the name of any person. Such change-of-name statutes do not abrogate or supersede the common law. To the contrary, they affirm the common law right and afford an additional method by which a name change may be effected as a matter of public record. Piotrowski v. Piotrowski, 247 N.W.2d 354, 355 (1976). Thus, a married individual in Michigan may choose any last name, so long as he/she is not doing so for fraudulent purposes.

Minnesota

In Minnesota, it appears that a married couple can take any last name of their choosing. In Application of Dengler, 287 N.W.2d 637 (1979), Petitioner appealed from the district court's denial of his application to change his last name under the Minnesota name-change statute to the numeral 1069. The Supreme Court affirmed the district court's holding, reasoning that “it was not the intention of the legislature in adopting Minn Stat. §§ 259.10, 11(1978) to authorize a court order which changes to a numeral an alphabetical 'name'” Id. at 639.

The Court, however, adopted the rule that “at common law a person may change his name at will, without resort to legal proceedings, by merely adopting another name, provided that this is done for an honest purpose [and that] where this subject [is] regulated by statute. . . such legislation is merely in aid of the common law and does not abrogate it.” Id. (citation omitted). As such, the Court held: “As we have indicated, the appellant is at liberty to enjoy his common law right to the use of numerals as his name, as long as he is willing to endure the inconvenience which is attendant on asserting that right.” Id. Therefore, a married individual in Minnesota may legally take any last name of their choosing, so long as he/she is not doing so for fraudulent purposes; however, if the married individual chooses numerals, that name could not be sanctioned by the state of Minnesota via a court order.

Ohio

In Ohio, it appears that a married couple can take any last name of their choosing. In re Bicknell et al, 771 N.E. 2d 846 (2002), Petitioners, a cohabitating same-sex couple, sought to change both of their last names to one that contained letters from both of their surnames. Relying on the common law rule that “a person may adopt any name he may choose so long as such change is not made for fraudulent purposes,” the Ohio Supreme Court held: “It is clear that appellants have no criminal or fraudulent purpose for wanting to change their names. They are not attempting to evade creditors or to create the appearance of a state-sanctioned marriage. Accordingly, we hold that appellants' name change[s]. . . are reasonable and proper.” Id. at 849. Because a same-sex couple was permitted to adopt a last name combining their two surnames, a married couple could do the same, as well as choose any other name, so long as they were not doing so for fraudulent purposes.

Wisconsin

In Wisconsin, it appears that a married couple can take any last name of their choosing. In Kruzel v. Podell, 226 N.W 2d 458,462 (1975) the Supreme Court of Wisconsin held that: “in accordance with the common law of this state, as frequently explained by the Attorney General, a change of name results from marriage only if, in accordance with common law principles, the surname of a married woman's husband is habitually used by her.” In so holding, the Court explained that “[t]his is no more than the recognition of a common law rule that a person could change his name if it was not done for the purpose of fraud.” Finally, The Court concluded that the statutes of Wisconsin “merely affirm, and do not abrogate, the common law.” Id. at 465. The Court continued: “[T]he common law should be permitted to operate unless evidence is put forward to show that some fraud or deception is intended by a change of name. . . .” Id. Since a husband and wife can legally have different last names, and since an individual (regardless of marital status) can change his or her name at will, we believe that a married individual in Wisconsin can take any last name of their choosing so long as the individual habitually uses it and did not choose it for purposes of fraud.

CONCLUSION

Thus we conclude that in all six states of this region an individual can change his or her name to any name he or she so chooses, so long as it is not for a fraudulent purpose.

Gary A. S~
Acting Chief Counsel, Region V

By:
Yusef A. D~
Assistant Regional Counsel