Accept marriage documents issued to same-sex couples for marriages that took place on November 19, 2014 or later by jurisdictions (town, county or State) in the State of Montana as evidence of a name change.

Question Presented

Montana began issuing same-sex marriage licenses on November 19, 2014.  Should SSA accept marriage documents issued to same-sex couples in Montana as evidence of a name-change event?

Short Answer

Yes.  SSA should accept marriage documents issued to same-sex couples in Montana on November 19, 2014, and thereafter, as evidence of a name-change event.

Background

On October 15, 2014, the Ninth Circuit Court of Appeals affirmed lower court decisions finding that Idaho’s and Nevada’s bans on same-sex marriage were unconstitutional.  See Latta v. Otter, 771 F.3d 496 (9th Cir. 2014).  On November 19, 2014, based in large part on Latta, a federal district court judge held that Montana’s ban on same-sex marriage was unconstitutional and directed that his order be effective immediately.  See Rolando v. Fox, 23 F. Supp. 3d 1227 (D. Mont. 2014) (declaring Montana Code Ann. §§ 40-1-401(1)(d), 40-1-103 and Mont. Const. Art. XVIII § 7 unconstitutional).  The State appealed this ruling to the Ninth Circuit, but the parties later agreed to stay appellate proceedings pending the United States Supreme Court’s decision in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, ___S. Ct. ___, Nos. 14-556, 14-562, 14-571, 14-574 (Jan. 16, 2015), which involves nearly identical issues.  See Order Staying Appellate Proceedings in Rolando v. Fox, No. 14-35987 (9th Cir. Feb. 9, 2015), available at http://cdn.ca9.uscourts.gov/datastore/general/2015/02/09/14-35987%20Order%20granting%20Stay.pdf

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.”  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. 1. 

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

2. 2. 

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

3. 3. 

   any change to the status of prior or new civil union or domestic partnership entered into in the same State;  and

4. 4. 

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

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

Montana began issuing same-sex marriage licenses on November 19, 2014.  SSA should treat documents reflecting same-sex marriages that occurred in Montana on November 19, 2014, and thereafter, as valid for purposes of establishing a name-change event. 

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

Montana permits parties to change their names based on marriage.  In general, Montana allows an individual to change his or her name as long as the individual meets a residency requirement and a judge does not conclude that the name change should not be allowed.   See Mont. Code Ann. §§ 27-31-101 to 27-31-204.  With regard to whether marriage documents support a request for a name change, the Montana marriage statutes do not directly address the issue.  See Mont. Code Ann. §§ 40-1-101, et. al.  However, Montana does accept marriage certificates as proof of a name change for the purpose of changing the name on an individual’s driver’s license.  See https://dojmt.gov/driving/driver-licensing/#changing-your-name-on-your-driver-license-or-id-card (accessed March 27, 2015).  These rules do not specifically refer to same-sex marriages.  However, the court decisions discussed above hold that there can be no legal distinction between same-sex couples and opposite-sex couples with respect to marriage.  Therefore, SSA should accept as evidence of a name change event same-sex marriage documents issued in Montana on November 19, 2014, and thereafter. 

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

As Montana does not provide for the statewide recognition of civil unions or domestic partnerships, this question is inapplicable.^[1]

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

As discussed, Montana does not provide for the statewide recognition of civil unions or domestic partnerships.  Nor does Montana have any legal authority for providing recognition of a civil union or domestic partnership from other jurisdictions.  While subsequent actions by the State of Montana or its courts could change the analysis, we do not believe, based on the current status of the law, that a same-sex couple must dissolve any previously formed civil union or domestic partnership prior to entering into a same-sex marriage in Montana.  Cf. Mont. Code Ann. § 40-1-107(1)(b) (requiring only that a prior “marriage” be disclosed for purposes of marriage license application); see also, e.g., Montana Dep’t of Revenue, Same Sex Filing FAQs, https://revenue.mt.gov/Portals/9/individuals/forms/Same-sex-filingstatus-FAQ.pdf (“Montana tax law does not consider couples in civil unions or registered domestic partnerships as ‘married.’”) (last visited April 21, 2015). 

Conclusion

SSA should accept Montana same-sex marriage documents issued on November 19, 2014, and thereafter, as evidence of a name-change event. 

SSA cannot process the name change to the surname from K~ to A~ based on the marriage certificate. The “new name” is an entirely new last name that cannot be derived from the marriage document.

QUESTION PRESENTED

Does the State of Montana permit the number holder, A~ K~, to change her surname to A~, an entirely new surname that cannot be derived from the names on the marriage certificate, based upon her signature on the marriage certificate?

SHORT ANSWER

The marriage license and marriage certificate are not acceptable evidence of the requested name change from A~ K~ to A~ A~.

BACKGROUND

Ms. K~ married J~ on January XX, 2014, in Clancy, Montana. However, in the marriage certificate, Ms. K~ signed her name as “A~ A~,” not A~ K~. The State of Montana issued Ms. K~ a driver’s license in the new surname, A~, using the marriage certificate as evidence of the name change.

Ms. K~ has applied for a replacement Social Security card with name change, alleging that state law permits her to change her surname to an entirely new surname by signing her chosen surname to her marriage certificate.

DISCUSSION

In general, an individual seeking to change her name must present (1) evidence of a name change event; (2) evidence of the new name; and (3) evidence of the individual’s (numberholder’s) identity. See POMS RM 10212.055. On January XX, 2014, Ms. K~ married J~ in a ceremony performed by a minister, which qualifies as a name change event. POMS RM 10212.055(A), RM 10212.010.

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(B). The POMS permits any of the following changes to the last name, which can be derived from the name change document:

• •

  Bride takes groom’s last name;

• •

  Groom takes bride’s last name

• •

  Spouse or partner takes the other party’s last name;

• •

  Spouse or partner takes one part of the other parties’ compound name; or

• •

  Compound name (with or without hyphen) of each spouse’s or partner’s original surname for either or both parties.

POMS RM 10212.055(B). In the present case, the groom’s name is listed as J~ and the bride’s name is listed is A~. However, under the marriage certificate, Ms. K~ signed her name as “A~ A~.”

Thus, the NH seeks to use the marriage certificate as evidence of an entirely new surname, unrelated to and not derived from her husband’s surname, which is acceptable only if permitted under Montana’s statutory law. See POMS RM 10212.055(B) (Exception).

In Montana, there is no statute expressly allowing a person to assume an entirely new surname – unrelated to the spouse’s surname – solely based on a marriage event. See Mont. Code Ann. 40-1-101 et seq. (statutes governing marriage). While Montana regulations do permit a change of name on a driver’s license based upon a certified copy of a marriage certificate, Mont. Admin. R. 23.3.128(1)(a), there is no similar statute addressing name change in the context of marriage. Furthermore, it is not entirely clear that the regulation would permit an entirely new surname. See Mont. Admin. R. 23.3.128.

Because the POMS require that a state statute (not merely a regulation) permit a complete name change, the Montana regulation is insufficient under our rules to transform the marriage certificate and/or driver’s license into acceptable evidence of a name change. See POMS RM 10212.055(B) (Exception). Therefore, the marriage certificate is not acceptable evidence of the NH’s new surname.

CONCLUSION

Montana does not have a statute that allows an individual to choose an entirely new surname based on marriage. As such, the marriage certificate is not acceptable evidence of the requested name change from A~ K~ to A~ A~.

John Jay Lee

Regional Chief Counsel, Region VIII

By__________

James L. Burgess

Assistant Regional Counsel