Under provisions of the California Name Equality Act of 2007 (effective January 1, 2009), a certified copy of the marriage certificate issued on or after January 1, 2009, containing the new name, is acceptable evidence of a legal name change to the person's middle name and surname.

An individual whose marriage certificate issued on or after January 1, 2009 does not reflect a name change, and who wishes to change his or her name based on that marriage, must present a court order changing his or her name. This opinion clarifies precedent opinion PR 09-039.

QUESTION

You asked that we clarify a precedent opinion (PR 09-039) concerning name changes based on marriage under the California Name Equality Act.

SHORT ANSWER

For purposes of a legal name change based on a California marriage, SSA will accept an original or certified copy of the marriage certificate containing the new name and issued on or after January 1, 2009.

However, individuals with marriage licenses issued on or after January 1, 2009 who did not elect to change their names on their license applications and who wish to change their names based on their marriage must present a State court order.

BACKGROUND

On October 17, 2007, the Governor of the State of California approved the Name Equality Act of 2007. The law applies only to marriage licenses issued on or after January 1, 2009. Specifically, with respect to marriage, the Name Equality Act:

1) Provides that parties to a marriage shall not be required to have the same name.

2) Provides that neither party to a marriage shall be required to change his or her name.

3) Allows each party to the marriage to elect to change his or her middle or last name to the current last name of the other spouse, the last name of either spouse given at birth, a name combining into a single last name all or a segment of the current or the last name of either spouse given at birth, or a hyphenated combination of last names.

4) Provides that an election by a party to change his or her name must be entered in the space provided on the marriage license application.

5) Provides that the marriage certificate containing the new name, or retaining the former name, shall constitute proof that the use of the new name or retention of the former name is lawful.

6) Provides that a certified copy of the marriage certificate shall be accepted for identification establishing a true, full name for purposes of a California driver's license.

7) Provides that the adoption of a new name, or the choice not to adopt a new name shall not abrogate the right of either party to adopt a different name through usage at a future date, or to petition the superior court for a change of name.

2007 Cal. Legis. Serv. Ch. 567 (A.B. 102) (West), amending Cal. Fam. Code §§ 306.5, 355, 358 and Cal. Health and Safety Code § 103175.

One or both parties to a marriage may elect to change the middle and/or last names by which that party wishes to be known after their marriage is solemnized. Each party applying for a marriage license may choose to include on their marriage license the new name in the spaces provided on the marriage license application without intent to defraud. Changing one’s name through this process can only be done at the time the marriage license is issued by the County Clerk or authorized Notary Public, as applicable.

Each party to the marriage may adopt any of the following last names:

• •

  The current last name of the other spouse.

• •

  The last name of either spouse given at birth.

• •

  A name combining into a single last name all or a segment of the current last name or the last name of either spouse given at birth.

• •

  A combination of last names.

Each party to the marriage may adopt any of the following middle names:

• •

  The current last name of either spouse.

• •

  The last name of either spouse given at birth.

• •

  A combination of the current middle name and the current last name of the person or spouse.

• •

  A combination of the current middle name and the birth last name of the person or spouse.

Segments are not allowed in the middle name.

Parties may not completely drop their existing middle name.

Changing one’s name through this process can only be done at the time the marriage license is issued by the County Clerk or authorized Notary Public, as applicable. See California Department of Public Health, “The Name Equality Act of 2007,” Revised January 2017, available at: https://www.cdph.ca.gov/Programs/CHSI/CDPH%20Document%20Library/CHSI-The-Name-Equality-Actof2007-4-2017.pdf

ANALYSIS

Consistent with the California Name Equality Act, SSA will recognize a name change based on an original or certified copy of a California marriage certificate containing the new name and issued on or after January 1, 2009. POMS RM 10212.025 (Evidence of Name Change based on a US Ceremonial Marriage).

SSA policy, however, differs from the provisions of the California Name Equality Act in a critical respect. The California Name Equality Act provides in part that the adoption of a new name, or the choice not to adopt a new name shall not abrogate the right of either party to adopt a different name through usage at a future date, or to petition the superior court for a change of name. Cal. Fam. Code § 306.5(c). SSA does not recognize a new name based on common-law usage. An individual cannot later effect a name change for Social Security purposes by simply using a new name.

Thus, for Social Security purposes, an individual whose marriage certificate issued on or after January 1, 2009 does not reflect a name change and who wishes to change his/her name based on that marriage must present a court order changing his or her name. POMS RM 10212.080 (Evidence of a Name Change based on a US Issued Court Order Name Change).

CONCLUSION

An individual requesting to change his or her name for Social Security purposes may present an original or certified copy of a California marriage certificate with the name change issued on or after January 1, 2009. If the marriage certificate issued after January 1, 2009 does not show the new name, the individual seeking to subsequently change his or her name based on the marriage must present a court order to change his or her name.

Accept marriage documents issued to same-sex couples for marriages that took place 6/16/08 in the following five counties:

• •

  Alameda,

• •

  Los Angeles,

• •

  San Francisco,

• •

  Sonoma and

• •

  Yolo counties

For all other jurisdictions (town, country or State) in the State of California, accept marriage documents issued to same-sex couples for marriages that took place between 06/17/08 and 11/04/08 and June 28, 2013 or later as evidence of a name change.

SUMMARY

Program Operations Manual System (POMS) RM 10212.035, PR 02712.006, and GN 00210.003 currently provide that California permitted same-sex marriages from June 17, 2008 to November 4, 2008, as well as from June 26, 2013 to the present. However, California began recognizing the validity of same-sex marriages on June 16, 2008 at 5:00 p.m. The agency received marriage documents showing a same-sex marriage occurred on June 16, 2008. Accordingly, the agency should revise the foregoing POMS sections, replacing “June 17, 2008” with “June 16, 2008.”

BACKGROUND

Effective March 8, 2000, through Proposition 22, California voters amended the California Family Code to ban same-sex marriages. Cal. Fam. Code § 308.5, repealed by 2014 Cal. Legis. Serv. Ch. 82 (S.B. 1306) (effective Jan. 1, 2015). However, on May 15, 2008, the California Supreme Court ruled that Proposition 22 and Family Code section 308.5, prohibiting same-sex marriages, were unconstitutional. In Re: Marriage Cases, 43 Cal. 4th 757, 857, 183 P.3d 384, 453 (Cal. 2008). On June 4, 2008, the California Supreme Court denied a petition for rehearing, and issued an order instructing that its May 15, 2008 decision would become effective on June 16, 2008 at 5:00 p.m. See Judicial Council of California News Release: California Supreme Court Denies Rehearing and Stay in Marriage Cases, June 4, 2008, available at www.courts.ca.gov/documents/NR31-08.PDF; Strauss v. Horton, 46 Cal.4th 364, 397, 207 P.3d 48, 68 (Cal. 2009) (“Our order indicated that the decision filed on May 15, 2008, would become final at 5:00 p.m. on June 16, 2008”). Five California counties, including San Francisco, Alameda, Los Angeles, Sonoma, and Yolo, began issuing marriage licenses and certificates immediately following the effective date and time of the Supreme Court’s decision. See Gay Marriages Legal In California, CBS News, June 16, 2008, available at: http://www.cbsnews.com/news/gay-marriage-is-legal-in-california/

(“Dozens of gay couples were married Monday after a historic ruling making California the second state to allow same-sex nuptials went into effect.

At least five county clerks around the state extended their hours to issue marriage licenses, and many same-sex couples got married on the spot”); Gay Weddings Begin, SunSentinal, June 17, 2008, available at (“Although county offices typically close by 5 p.m., registrars and clerks who issue marriage licenses in Los Angeles, San Francisco, Alameda, Sonoma and Yolo counties remained open to allow at least two dozen same-sex couples to be among the first wed.”).

ANALYSIS

Pursuant to the California Supreme Court’s June 4, 2008 order, same-sex marriages became legal in California on June 16, 2008 at 5:00 p.m. Five California counties took immediate action, extending their clerks’ hours, and began issuing marriage licenses at 5:01 p.m. Subsequently, on November 4, 2008, California voters passed Proposition 8, amending the California Constitution to again ban same-sex marriages. Cal. Const. Art. I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). Same-sex marriages remained illegal in California until the United States Supreme Court’s ruling in Hollingsworth v. Perry, upholding an August 4, 2010 District Court decision that Proposition 8 was unconstitutional. Hollingsworth v. Perry, 133 S.Ct. 2652 (2013). ^[1]

CONCLUSION

We advise modifying POMS RM 10212.035, PR 02712.006, and GN 00210.003. Currently, these POMS sections recognize the validity of same-sex marriages performed in California between June 17, 2008 and November 4, 2008, as well as on or after June 28, 2013. We advise modifying these provisions to reflect California’s recognition of same-sex marriages beginning June 16, 2008.

Accept marriage documents issued to same-sex couples for marriages that took place between 06/17/08 and 11/04/08 and June 28, 2013 or later by jurisdiction (town, county or State) in the State of California as evidence of a name change.

SUMMARY

On June 28, 2013, California again began authorizing the issuance of marriage licenses to same-sex couples. Therefore, the Social Security Administration (SSA) should accept California marriage certificates issued to same-sex couples, between June 17, 2008 and November 4, 2008, or after June 27, 2013, as valid evidence of a name change.

BACKGROUND

Effective March 8, 2000, California amended its Family Code to provide that a marriage is only valid between a man and a woman. Cal. Fam. Code § 308.5. However, in May 2008, the California Supreme Court held that same-sex couples had the right to marry. In Re Marriage Cases, 43 Cal. 4th 183, 183 P.3d 384 (Cal. 2008). In November 2008, California voters passed Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. Art. I, § 7.5; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 927 (N.D. Cal. 2010). On August 4, 2010, the District Court for the Northern District of California held that Proposition 8 was unconstitutional under both the Due Process and Equal Protection Clauses of the United States Constitution. Id. at 1004. However, the Ninth Circuit granted a stay on August 16, 2010, pending resolution of an appeal. See Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug. 16, 2010) (order). Upon review, the Ninth Circuit held that the people of California violated the Equal Protection Clause by “using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so,” and that Proposition 8 was unconstitutional on this basis. Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012). On June 26, 2013, the United States Supreme Court held that the proponents of Proposition 8 did not have standing to appeal, upholding the district court’s order declaring the proposition unconstitutional. See Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).

On June 28, 2013, the Ninth Circuit dissolved its stay in P~, “effective immediately.” Perry v. Brown, No. 10-16696, -- F.3d --, 2013 WL 3305447 (9th Cir. June 28, 2013). California state officials construed the lifting of the stay as indication that same-sex marriage in California was legal and permitted. See Ruling by the U.S. Supreme Court Regarding Same-Sex Marriages, Cal. Dept. of Pub. Health (June 28, 2013) (State Registrar’s Message to County Clerks), available at http://gov.ca.gov/docs/DPH_Letter.pdf (“same-sex marriage is again legal in California. Effective immediately, county clerks shall issue marriage licenses to same-sex couples in California”) (emphasis in original); Attorney General Kamala D. Harris Celebrates Marriage Equality, press release from the Office of the Attorney General, State of Cal. Dept. of Justice (June 26, 2013), available at http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-celebrates-marriage-equality-asks-ninth-circuit (“The Supreme Court’s historic ruling in Hollingsworth v. Perry means that same-sex couples have the fundamental right to be legally married in all of California’s 58 counties.”). ^[2]

Even prior to the H~ ruling, California recognized the validity of same-sex marriages performed prior to the effective date of Proposition 8. On June 17, 2008, after the California Supreme Court’s ruling in re Marriage Cases, California counties began issuing same-sex marriage certificates. These same-sex marriage certificates were legally issued until November 5, 2008, the effective date of Proposition 8. In Straus v. Horton, 46 Cal.4th 364, 385, 474 (Cal. 2009), the California Supreme Court held that Proposition 8’s ban on same-sex marriage did not apply retroactively to invalidate an estimated 18,000 same-sex marriages entered into between June 17, 2008 and November 5, 2008. Id.; see also POMS RM 10212.035(A)(1) (accepting marriage documents issued to same-sex couples for purposes of a name change if the marriage took place between June 17, 2008 and November 4, 2008).

Accordingly, same-sex marriages were legal in California from June 17, 2008 to November 4, 2008; and again are legal on and after June 28, 2013.

QUESTIONS PRESENTED

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 RM 10212.035 provides that when a State legalizes same-sex marriages, an opinion from the Regional Chief Counsel should be obtained regarding the following information:

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

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

DISCUSSION

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

As detailed above, with the lifting of the Ninth Circuit’s stay in P~, same-sex marriages became legal again in California on June 28, 2013. P~, 2013 WL 3305447. Further, California continues to recognize as valid same-sex marriages entered between June 17, 2008 and November 4, 2008. S~, 46 Cal. 4th at 385.

We advise that POMS RM 10212.035(A)(1) be amended to reflect this change in California law. Currently, the relevant provision states “Accept marriage documents issued to same-sex couples for marriages that took place between 06/17/08 and 11/04/08…” We recommend revising this language to accept marriage documents issued to same-sex couples “between 06/17/08 and 11/04/08, or after 06/27/13…”

The California Department of Public Health issued a message to county clerks on June 28, 2013, providing further guidance. See State Registrar’s Message to County Clerks. For example, California will recognize same-sex couples legally married in another jurisdiction as already legally married under California law, and will not issue these couples new marriage licenses. Id. (citing Cal. Fam. Code §§ 301-302, 500, which allow for only unmarried persons to wed in California).

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

Yes. Effective January 1, 2009, the California Name Equality Act of 2007 provides that parties to a marriage may elect to change their middle or last names to adopt the last name of the other party. Cal. Fam. Code § 306.5; see also POMS PR 02712.006 (specifically addressing provisions of the California Name Equality Act of 2007). The name-change provisions do not distinguish between same-sex and opposite sex marriages. “For SSA’s purposes, as of January 1, 2009, a marriage license application electing a new name as allowed by the law and a certified copy of the marriage certificate containing the new name are acceptable evidence of a legal name change.” POMS PR 02712.006. Moreover, in providing that domestic partners have the right to elect the last name of the other domestic partner, it is apparent that the California legislature intended that the name change provisions be applied equally to same-sex couples. See Cal. Fam. Code § 298.6 (providing that one or both parties of a registered domestic partnership may elect to change his or her middle or last names to adopt the last name of the other domestic partner); POMS PR 02707.006(B) (addressing the California Name Equality Act as it pertains to domestic partnerships). Therefore, the agency may accept the same name-change documentation for same-sex marriages as it would accept for opposite sex marriages.

3. Whether a prior entered civil union or domestic partnership must be dissolved before entering into a same-sex marriage?

No. The California Department of Public Health’s June 28, 2013 message states that county clerks may issue a marriage certificate to a same-sex couple that is already in a domestic partnership, so long as they have not already legally married in another jurisdiction. See State Registrar’s Message to County Clerks. As discussed above in answer to Question 2, the domestic partnership could also be a basis for a legal name change in California.

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

None. Domestic partnerships continue to exist as a form of legal union between same-sex and opposite sex couples even after the Supreme Court’s ruling in H~ See Cal. Fam. Code § 297; see also State Registrar’s Message to County Clerks (“People who are currently in a State Registered Domestic Partnership (SRDP) may be issued a marriage license”) (emphasis added). Registered domestic partners continue to have the same rights, protections, and benefits as married spouses under California law. Cal. Fam. Code § 297.5. Moreover, a domestic partnership may continue to exist even after the domestic partners enter into a marriage if the partners did not dissolve the partnership as provided by California law. See Estate of W~, 211 Cal. App. 4th 1284, 1296 & n.7 (Cal. App. 2012) (holding that the same-sex couple’s domestic partnership remained in effect after their 2008 marriage because they did not dissolve their domestic partnership pursuant to section 299 of the Family Code, and recognizing that a number of same-sex couples marrying in 2008 before the passage of Proposition 8 would be both a married couple and domestic partners); see also Cal. Fam. Code § 299 (procedures for terminating a domestic partnership).

Under provisions of the California Name Equality Act of 2007 that apply to marriage, a certified copy of the marriage certificate containing the new name is acceptable evidence of a legal name change to the person's middle name and surname.

On October 17, 2007, the Governor of the State of California approved the Name Equality Act of 2007. Those provisions of the law that apply to registered domestic partnerships became operative on January 1, 2008, and are explained in detail in Program Operations Manual System (POMS) PR 02707.006 California (specifically, PR 08-059 Name Change Based on California Domestic Partnership - Name Equality Act of 2007; and PR 07-131 Name Change Based on California Domestic Partnership.

Those provisions of the law that apply to marriage become operative on January 1, 2009. Specifically, with respect to marriage, the Name Equality Act:

1) Provides that parties to a marriage shall not be required to have the same name.

2) Provides that neither party to a marriage shall be required to change his or her name.

3) Allows each party to the marriage to elect to change his or her middle or last name to the current last name of the other spouse, the last name of either spouse given at birth, a name combining into a single last name all or a segment of the current or the last name of either spouse given at birth, or a hyphenated combination of last names.

4) Provides that an election by a party to change his or her name must be entered in the space provided on the marriage license application.

5) Provides that the marriage certificate containing the new name, or retaining the former name, shall constitute proof that the use of the new name or retention of the former name is lawful.

6) Provides that a certified copy of the marriage certificate shall be accepted for identification establishing a true, full name for purposes of a California driver's license.

7) Provides that the adoption of a new name, or the choice not to adopt a new name shall not abrogate the right of either party to adopt a different name through usage at a future date, or to petition the superior court for a change of name.

2007 Cal. Legis. Serv. Ch. 567 (A.B. 102) (West), amending Cal. Fam. Code §§ 306.5, 355, 358 and Cal. Health and Safety Code § 103175.

On December 30, 2008, the Colorado Department of Public Health issued the following guidance to the county recorders and county clerks:

For purposes of completing the marriage license, the following last names may be used to establish new middle or last names for either party:

"First Person Current Last Name (Field 1C)”;

"First Person Last Name at Birth (Field 1D)”;

"Second Person Current Last Name (Field 12C)”;

"Second Person Last Name at Birth (Field 12D)”.

The above last names may be used in whole or in part where the part is a segment of the name.

A segment is a contiguous portion of the name; it is an identifiable match of a portion of the current last name or the last name given at birth of either spouse. The segment may not omit or add new letters and the letters may not be changed around to create an entirely different segment that does not match a portion of the current last name or the last name given at birth of either spouse.

All County Letter 08-25.

For SSA's purposes, as of January 1, 2009, a marriage license application electing a new name as allowed by the law and a certified copy of the marriage certificate containing the new name are acceptable evidence of a legal name change.