PR: Title II Regional Chief Counsel Precedents
TN 51 (08-17)
A. PR 17-130 Notarized Heritage Ministries Marriage Certificate as Legal Name Change Document
Date: August 4, 2017
1. Syllabus
A notarized Certificate of Marriage document issued by Heritage Ministries is not acceptable evidence of a name change event or constitutes a legal name change document since it is not in compliance with the requirements outlined in the Texas Family Code statutes for ceremonial marriage documents issued for marriages that took place in Texas.
Texas law requires individuals entering into a ceremonial marriage in the state of Texas:
obtain a marriage license from the county clerk in Texas,
participate in a solemnized marriage ceremony by an authorized individual, complete a marriage certificate on the license, and
return the completed marriage license to the county clerk to be recorded and filed in the county records.
2. Opinion
QUESTION PRESENTED
You asked whether the Social Security Administration (SSA) can rely on a notarized Heritage Ministries Certificate of Marriage as a legal name change document to change the surname, or last name, on the Social Security number (SSN) record of the number holder (NH) A~ to F~, the last name of her alleged spouse F~.
ANSWER
The notarized Heritage Ministries Certificate of Marriage is not an acceptable legal name change document evidencing a valid U.S. ceremonial marriage, which is required for a name change to the SSN record under Social Security law and policy. See Program Operations Manual System (POMS) RM 10212.010 – RM 10212.025. Therefore, we advise that SSA should not change the NH’s name on her SSN record based upon this document.
BACKGROUND
The NH, a resident of Texas, submitted the Form SS-5 Application for a Social Security Card requesting that SSA change her surname on her SSN record from A~ to F~. To support the name change, the NH provided a notarized Heritage Ministries Certificate of Marriage showing that a minister performed a ceremony purporting to marry the NH and G~ on March XX, 2017. It appears that Heritage Ministries is also known as Homestead Heritage, and its website describes the group as “an agrarian- and craft-based intentional Christian community.” See http://www.homesteadheritage.com/ (last visited August 4, 2017). Homestead Heritage is located in Waco, Texas. See id. Your legal opinion request states that this community creates and maintains its own marriage records. You also state that the NH did not secure a Texas marriage license from the local county clerk and did not file a completed Texas marriage license and certificate with the county clerk. The NH also provided a Texas Department of Public Safety temporary driver’s permit issued on June XX, 2017, showing the NH’s last name as F~.
ANALYSIS
A. Federal Law and Agency Policy in General Regarding Name Changes
For SSA enumeration purposes, a legal name consists of a first name and a last name. See POMS RM 10212.001(A). In general, the legal name of a person born in the United States (U.S.) is the name shown on his or her U.S. birth certificate unless the person’s name has changed based on certain events, such as a marriage. See POMS RM 10212.001(B)(1).
When a number holder applies for a replacement SSN card to reflect a name change, SSA must determine whether the name change request is valid pursuant to federal law and agency policy. SSA amended its regulations and policy to be more restrictive in its requirements for changes to the SSN record due to the agency’s efforts to comply with the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). Pub. L. 108-458; see also POMS RM 10210.001 (explaining the history of the strengthening of SSN evidence requirements in response to misuse of the SSN and related fraud); SSA EM-06064 (effective Oct. 2, 2006, archived April 13, 2010) (outlining new policy for name changes based on marriage and setting out three evidence requirements for a name change). The IRTPA required the agency to “establish minimum standards for the verification of documents or records submitted by an individual to establish eligibility for an original or replacement social security card, other than for purposes of enumeration at birth.” Pub. L. 108-458, § 7213(a)(1)(B).
“The integrity of the SSN is a matter of great importance to Social Security.” POMS RM 10210.200. “SSA is strongly committed to strengthening and improving the integrity of the enumeration process.” POMS RM 10210.205. Under current law and policy, SSA will not honor a request to change a name based merely on a state’s common law practice. Social Security law and policy provide specific evidentiary requirements for a name change to the SSN.
The regulations explain that “[i]f you wish to change the name or other personal identifying information you previously submitted in connection with an application for a Social Security number card, you must complete a prescribed application,” and “[y]ou must prove your identify, and you may be required to provide other evidence.” 20 C.F.R. § 422.110(a). Following the IRTPA, the regulations were amended to further specify that “[i]f your request is for a change of name on the card (that is, verified legal changes to the first name or surname, or both), we may issue you a replacement Social Security number card bearing the same number and the new name.” Id. Thus, an applicant for a name change to the SSN record must submit documentary evidence that SSA regards as convincing evidence of the applicant’s identity and must submit evidence verifying a legal name change. See 20 C.F.R. §§ 422.103(e)(2), 422.107(a), (c), 422.110(a). SSA’s POMS more specifically instruct that an individual who is seeking to change his or her name on the SSN record must show evidence of:
A name change event that complies with the agency’s evidence requirements detailed for each event in RM 10212.010;
The number holder’s identity;1 and
The new name.2
See POMS RM 10212.015.
The focus of this legal opinion request is on the first criteria regarding whether the NH has provided evidence of a legal name change event that complies with the agency’s requirements detailed in POMS RM 10212.010. We turn next to SSA’s policy regarding acceptable name change events.
B. SSA Requirement for Evidence of a Name Change Event Under POMS RM 10212.010
SSA’s POMS RM 10212.010 sets forth the following exclusive list of name change events for purposes of changing the legal name on the SSN:
Marriage and Divorce (U.S. ceremonial marriage; U.S. common law marriage; U.S. recognized same-sex marriage; U.S. recognized civil union; U.S. recognized domestic partnership; foreign marriage or foreign recognized same-sex marriage; and U.S. or foreign divorce or annulment);
U.S. Certificate of Naturalization (N-550/N-570);
U.S. court order for a name change;
U.S. state amended/corrected birth certificate;
Canadian issued document; and
U.S. Indian Tribal document.
The NH has requested a name change based upon an alleged ceremonial marriage and has provided the notarized Heritage Ministries Certificate of Marriage as proof of the ceremonial marriage. A U.S. ceremonial marriage is a recognized name change event. See POMS RM 10212.010, RM 10212.025. We consider whether the NH’s document is acceptable evidence of a legal name change event.
C. SSA Requirement for Evidence of a Name Change Based on a U.S. Ceremonial Marriage Under POMS RM 10212.025
SSA’s policy instructs that SSA is to “accept all marriage documents issued by U.S. States” as evidence of a name change event. POMS RM 10212.025. Here, the NH’s purported ceremonial marriage took place in Texas. Texas law sets forth specific procedures and requirements for completing an application for and obtaining a marriage license from a county clerk in Texas, participating in a solemnized marriage ceremony by an authorized individual, completing a marriage certificate on the license, and returning the completed marriage license to the county clerk for filing and record in the county records. See Tex. Fam. Code Ann. §§ 2.001 – 2.209. A recorded and completed marriage certificate is proof of a valid ceremonial marriage that complies with Texas law. See Black v. Shell Oil Co., 397 S.W.2d 877, 881 (Tex. Civ. App. - Texarkana 1965, writ ref’d n.r.e.); Jones v. State, 17 S.W.2d 1053, 1056 (Tex. Crim. App. 1928); see also Simpson v. Simpson, 380 S.W.2d 855, (Tex. Civ. App. – Dallas 1964, writ ref’d n.r.e) (“It has long been the established law of Texas that a ceremonial marriage entered into in accordance with legal forms will raise the presumption, or inference of its legality.”).
Here, however, the NH has not provided a marriage document issued by a county clerk in the State of Texas showing a valid ceremonial marriage in compliance with Texas law.3 Instead, as noted above, the NH provided only a notarized Heritage Ministries Certificate of Marriage showing that a minister performed a ceremony purporting to marry the NH and F~ on March XX, 2017. Your legal opinion request states that this community church, known as Homestead Heritage, creates and maintains its own marriage records. The NH did not secure a Texas marriage license from a local county clerk, nor file a completed Texas license and marriage certificate with a county clerk. Accordingly, as the NH has not provided evidence of a Texas-issued marriage document proving a valid ceremonial marriage under Texas law, the NH has not provided acceptable evidence of a name change event sufficient to process her request for a name change on the SSN.
CONCLUSION
As explained above, the notarized Heritage Ministries Certificate of Marriage is not an acceptable legal name change document evidencing a valid U.S. ceremonial marriage, which is required for a name change to the SSN record under Social Security law and policy. Therefore, SSA should not change the NH’s name on the SSN based upon this document.
B. PR 17-019 Marriage Certificate for Same-Sex Couple as Legal Name Change Document - Texas Law
Date: November 16, 2016
1. Syllabus
Accept marriage documents issued to same-sex couples for marriages that took place on June 26, 2015, or later, by jurisdictions (town, county, or State) in the State of Texas as evidence of a name change.
2. Opinion
SUMMARY
On June 26, 2015, the United States Supreme Court (Supreme Court) issued a decision in Obergefell, et al. v. Hodges, et al., 576 U.S. ___, 135 S.Ct. 2584 (2015) (Obergefell) holding that the Fourteenth Amendment of the United States Constitution requires a state to permit a marriage between two people of the same sex and to recognize a valid out-of-state marriage between two people of the same sex. As a result, on July 2, 2015, the Social Security Administration (SSA) updated the Program Operations Manual System (POMS) on Records Maintenance (RM) 10212.035(A) regarding evidence of a name change based on a United States (U.S.) ceremonial same-sex marriage to add Texas to the list of states for which same-sex marriage documents as specified are to be accepted as proof of a same-sex marriage for purposes of a name change request. Specifically, SSA instructed staff to“[a]ccept marriage documents issued to same-sex couples for marriages that took place on June 26, 2015 or later by jurisdictions (town, county or State) in the State of Texas as evidence of a name change.”
BACKGROUND ON LEGALIZATION OF SAME-SEX MARRIAGE IN TEXAS
Historically, Texas law prohibited same-sex marriages within Texas and prohibited recognition of out-of-state same-sex marriages. See Tex. Const. art. I, § 32(a), (b); Tex. Fam. Code Ann. §§ 2.001(b), 2.401(a), 6.204(b), (c); see also Walker v. State Farm Lloyd’s, 2004 WL 1462200, at *2 fn1 (N.D. Tex. 2004) (marriage, formal and common-law, is not legal between same-sex couples in Texas); Murphy v. State, 653 S.W.2d 567, 569 (Tex. App. – San Antonio 1983, writ ref’d) (“in Texas two males cannot obtain a marriage license or enter into a common law marriage”). In 2013, plaintiffs filed lawsuits in federal district courts in Texas challenging Texas’s same-sex marriage laws, and on February 26, 2014, the U.S. District Court for the Western District of Texas issued a decision in one case holding Texas’s laws prohibiting same-sex marriage to be unconstitutional and enjoining enforcement of the laws. See De Leon v. Perry, No. 5:13-cv-00982-OLG (W.D. Tex. 2013); see also McNosky v. Perry, No. 1:13-cv-00631-SS (W.D. Tex. 2013); Zahrn v. Perry, No. 1:13-cv-00955-SS (W.D. Tex. 2013). The District Court issued an immediate stay of execution of the injunction while the case was on appeal to the Court of Appeals for the Fifth Circuit, and thus no same-sex marriages took place at this time. See De Leon v. Perry, No. 14-50196 (5th Cir.).
While the De Leon appeal was pending before the Fifth Circuit, on June 26, 2015, the Supreme Court issued a decision in the same-sex marriage case of Obergefell. Obergefell involved Sixth Circuit appeals arising from four same-sex marriage cases from Michigan, Ohio, Kentucky, and Tennessee, but the Supreme Court’s decision broadly addressed all states’ laws prohibiting same-sex marriage, such as Texas. See Obergefell, 576 U.S. ___, 135 S.Ct. at 2593. The Supreme Court held in Obergefell that: (1) “[t]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty” and thus, “same-sex couples may exercise this fundamental right to marry” in all states and states may not deny this liberty; and further, (2) states must recognize lawful same-sex marriages performed in other States. See id. at 2604-2605, 2607-2608. Thus, per the Supreme Court’s ruling in Obergefell, on July 1, 2015, the Fifth Circuit issued a decision in De Leon affirming the District Court’s decision. See De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015). The Fifth Circuit recognized that “Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit.” Id. at 625. Thus, the Fifth Circuit applied Obergefell to hold that Texas’s same-sex marriage laws were unconstitutional.
Accordingly, based on the Supreme Court’s ruling in Obergefell and the Fifth Circuit’s ruling in De Leon, beginning June 26, 2015, same-sex marriage is legal in Texas and Texas must recognize valid out-of-state same-sex marriages.
JULY 2, 2015 UPDATE TO POMS RM 10212.035
As stated earlier in this opinion, on July 2, 2015, in light of the Supreme Court’s decision in Obergefell on June 26, 2015, SSA updated POMS RM 10212.035(A) to include Texas among the states that permit ceremonial same-sex marriage and to instruct SSA to accept same-sex marriage documents from Texas as evidence of a name change beginning with the date of the Obergefell decision.
QUESTIONS PRESENTED
POMS RM 10212.035(D) provides that when a state legalizes same-sex marriage, the Regional Office should obtain a Regional Chief Counsel opinion addressing the questions provided with each accompanying response below.
DISCUSSION
1. Whether Texas permits parties to a same-sex marriage to change their names based on the marriage
Yes. As we addressed in detail in the background section above, pursuant to the Supreme Court’s June 26, 2015, Obergefell decision and the Fifth Circuit’s De Leon decision, same-sex marriage is legal in all states, including Texas. As a result, beginning June 26, 2015, no legal distinction exists between same-sex married couples and opposite-sex married couples with respect to marriage under Texas’s laws. Thus, beginning June 26, 2015, same-sex married couples in Texas may change their names based upon their marriage to the same extent as opposite-sex married couples.
Texas law allows for name changes based upon marriage. Under common law, an adult individual can change his or her name without resort to legal proceedings, as long as the name change is not for a fraudulent purpose. See Appeal of Evetts, 392 S.W.2d 781, 783 (Tex. Civ. App. – San Antonio 1965, writ ref’d). Sections 45.101 – 45.106 of the Texas Family Code sets forth the statutory procedure for obtaining a name change, which does not abrogate the common law right to a name change, but instead provides a method for documenting the change. See id. An adult seeking to change his or her name files a petition in court for a name change setting for the reason for the name change request, and like common law, an adult individual can change his or her name for any reason that is not fraudulent, wrongful, or capricious. See Tex. Fam. Code Ann. §§ 45.101, 45.102, 45.103(a); In re Erickson, 547 S.W.2d 357, 359 (Tex. App. – Houston [14th Dist.] 1977, no writ); Appeal of Evetts, 392 S.W.2d at 784. Thus, in general, an individual can seek a name change for any reason that is not fraudulent, and marriage constitutes an appropriate reason for a name change. Texas does not require an individual to change his or her name upon marriage, but allows an individual to choose the surname of the spouse upon marriage, retain the surname used before the marriage, or assume a hyphenated surname consisting of the spouses’ two surnames. See Tex. Atty. Gen. Op. No. MW-225, 1980 WL 100182, at *1 (Tex. A.G. 1980); Tex. Atty. Gen. Op. No. H-432 (Tex. A.G. 1974).
A marriage license supports a name change on a Texas driver’s license. Texas law provides that “[w]hen a change of name occurs as a result of marriage, divorce, annulment, or by the death of a spouse, the licensee may choose to keep the married name, revert to the birth surname, or adopt a previous spouse’s surname.” See Tex. Admin. Code tit. 37, § 15.23(1)(A) (if the name is changed for reasons other than marriage, a court order verifying a name change is required and the name shown on the order is acceptable). The Texas Department of Public Safety’s website instructs that individuals who want to change their name on their driver’s license must visit a driver’s license office within 30 days of the change and, if it is a marriage-related name change, the individual must bring a marriage license or divorce decree. See https://www.txdps.state.tx.us/DriverLicense/changes.htm (last visited Nov. 7, 2016). A marriage license supports name changes for various other Texas licensing purposes as well. See e.g., Tex. Admin. Code tit. 22, § 163.5(b)(2) (Texas medical license); Tex. Admin. Code tit. 22, § 185.4(b)(1) (physician assistant license); Tex. Admin. Code tit. 40, § 369.2(a) (occupational therapy license). Thus, marriage is an appropriate reason for a name change and a marriage license is acceptable evidence under Texas law to change a person’s name.
Accordingly, beginning June 26, 2015, same-sex married couples in Texas, like opposite-sex married couples, may change their names based upon their marriage, and a completed marriage license provides evidence of a valid marriage to support a name change.
2. The date Texas will begin issuing marriage licenses and certificates to same-sex couples
As detailed above, pursuant to Obergefell and De Leon, same-sex marriage became legal in Texas on June 26, 2015. POMS RM 10212.035(A)(48), which presently instructs SSA to accept marriage documents issued to same-sex couples for marriages that took place on June 26, 2015, or later in Texas as evidence of a name change, accurately reflects this change in Texas law and requires no further revisions.
3. Any change to the status of a prior or new civil union or domestic partnership entered into in Texas
This question is not applicable to Texas because Texas does not currently have a state law authorizing or recognizing a civil union or domestic partnership for same-sex couples.
4. Whether a prior entered civil union and domestic partnership must be dissolved before entering a same-sex marriage
This question is not applicable to Texas because Texas does not currently have a state law authorizing or recognizing a civil union or domestic partnership for same-sex couples.
CONCLUSION
On July 2, 2015, following the Supreme Court’s decision in Obergefell, SSA updated POMS RM 10212.035(A)(48) to instruct that SSA should accept marriage documents issued to same-sex couples for marriages that took place on June 26, 2015, or later in Texas, as evidence of a name change. POMS RM 10212.035(A)(48) should be updated to reference this precedent opinion regarding Texas laws concerning changing a name in the event of a same-sex marriage, but no other changes are necessary.
Traci B. Davis
Acting Regional Chief Counsel
By: Shalyn Timmons
Assistant Regional Counsel
Footnotes:
. SSA requires that a person applying for a replacement SSN card submit convincing evidence of his or her identity. See 20 C.F.R. § 422.107(c); POMS RM 10212.015(D).
. Evidence of the new name to be shown on the SSN card is obtained from the name change document, unless the name change is based on marriage, civil union, domestic partnership, divorce, dissolution, or annulment. POMS RM 10212.015(C).
. Parties to a common-law marriage may execute a declaration of informal marriage on a form prescribed by the bureau of vital statistics and provided by the county clerk, which affirms the elements of a common-law marriage and constitutes prima facie evidence of the marriage. Tex. Fam. Code Ann. §§ 2.402, 2.404(d). There is no such evidence here, however.