Accept marriage documents issued to same-sex couples for marriages that took place on November 12, 2014 or later by jurisdictions (town, county or State) in the State of Kansas as evidence of a name change.

QUESTION PRESENTED

Kansas recognized same-sex marriage on November 12, 2014, and began issuing same-sex marriage licenses on November 13, 2014.^[1] Should SSA accept marriage documents issued to same-sex couples in Kansas as evidence of a name-change event?

SUMMARY

Yes. SSA should accept marriage documents issued to same-sex couples in Kansas on November 13, 2014, and thereafter, as evidence of a name-change event.

BACKGROUND

On June 25, 2014 and July 18, 2014, the United States Court of Appeals for the Tenth Circuit affirmed district court decisions finding that Utah and Oklahoma’s bans on same-sex marriage were unconstitutional. See Kitchen v. Herbert, 755 F.3d 1193, 1229-30 (10th Cir. 2014) (Utah); Bishop v. Smith, 760 F.3d 1070, 1074 (10th Cir. 2014) (Oklahoma). The court imposed stays in both cases pending appeal. See Kitchen, 755 F.3d at 1230; Bishop, 760 F.3d at 1096. On October 6, 2014, the United States Supreme Court declined to hear either appeal, letting stand the Tenth Circuit’s decisions that Utah and Oklahoma’s bans on same-sex marriage were unconstitutional. See Herbert v. Kitchen, 135 S.Ct. 265, 190 L.Ed.2d 138 (Oct. 06, 2014); Smith v. Bishop, 135 S.Ct. 271, 190 LE.d.2d 139 (Oct. 6, 2014).

Based on the United States Supreme Court’s refusal to hear the Kitchen and Bishop appeals, Chief District Judge Kevin Moriarty of Johnson County, Kansas, issued an administrative order allowing marriage licenses to be issued to same-sex couples on October 8, 2014. See State of Kansas ex rel. v. Moriarty, No. 112,590, Petition for Issuance of Writ of Mandamus and Request for Immediate Relief, at 1, 2, Ex. A (filed Oct. 10, 2014) (attached).^[2] On October 10, 2015, the Kansas Attorney General filed a petition for a writ of mandamus and request for an injunction to vacate the administrative order and to prevent the issuance of same-sex marriage licenses. See id. at 1, 5-6. The same day, the Kansas Supreme Court issued a temporary injunction suspending Judge Moriarty’s order. See Moriarty, Stay Order (Kan. Oct. 10, 2014) (available at http://www.kscourts.org/cases-and-opinions/opinions/SupCt/2014/20141010/112590.pdf).

On November 4, 2014, the United States District Court for the District of Kansas held that Kansas’ same-sex marriage ban violated the Fourteenth Amendment to the United States Constitution. See Marie v. Moser, 65 F. Supp. 3d 1175, 1185 (D. Kan. 2014) (citing Kitchen). The Tenth Circuit Court of Appeals and Supreme Court of the United States denied state officials’ request for a stay pending appeal. See Marie v. Moser, No. 14-3246, Doc. 01019337192 (10th Cir. Nov. 7, 2014) (attached); Moser v. Marie, 135 S. Ct. 511, 190 L. Ed. 2d 385 (Nov. 12, 2014).

Based on the Marie ruling, on November 13, 2014, some Kansas counties began issuing same-sex marriages licenses. See Moriarty, Order Lifting Stay (Kan. Nov. 18, 2014) (attached). On November 18, 2014, the Kansas Supreme Court in Moriarty held that district court judges act “within [their] jurisdiction” when deciding whether to authorize or to not authorize the issuance of same-sex marriage licenses within their respective counties. See id. at 4-5. A majority of Kansas counties issued same-sex marriage licenses, while other counties refused or did not receive any requests. See Marriage Update Chart, Equality Kansas, dated Feb. 9, 2015, available at http://eqks.org/marriage-update-february-9-2015/. Meanwhile, the state of Kansas did not permit name changes based on same-sex marriage. See, e.g., Marie v. Mosier, 122 F. Supp.3d 1085, 1093, 1096, 1098, 1104-05 (D. Kan. Aug. 10, 2015).

On June 26, 2015, the United States Supreme Court issued a decision in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584 (2015) 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. See Obergefell, 135 S.Ct. at 2604-05. By June 30, 2015, all Kansas counties allowed same-sex marriage licenses. See All counties in Kansas allowing same-sex marriage licenses, but state not yet allowing names changes, joint tax returns, Lawrence Journal World, June 30, 2015, available at http://www2.ljworld.com/news/2015/jun/30/most-counties-kansas-allowing-same-sex-marriage-li/. On August 10, 2015, the United States District Court for the District of Kansas held that refusal to permit same-sex spouses to obtain driver’s licenses in their married names in the same manner as opposite-sex spouses violated the Fourteenth Amendment to the United States Constitution. See Marie, 122 F. Supp. 3d at 1113.

ANALYSIS

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 the agency to accept same-sex marriage documents validly issued by a state that permits ceremonial same-sex marriage as evidence of a name change. See 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 into a same-sex marriage.

 

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

Some counties in Kansas began issuing same-sex marriage licenses on November 13, 2014. By June 30, 2015, all Kansas counties allowed same-sex marriage licenses. SSA should treat documents reflecting same-sex marriages that occurred in Kansas on November 13, 2014, and thereafter, as valid for purposes of establishing a name-change event.^[3]

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

Kansas statutes provide for name changes pursuant to marriage.^[4] See Kan. Stat. Ann. § 23-2506 (allowing a person, at the time of marriage, to designate the legal name by which the person shall subsequently be known). The person’s name at the time of the application for the license, as well as the newly designated name, shall be recorded on the marriage license. See id. The change to the person’s new legal name is effective upon the endorsement of the certificate of marriage on the person’s marriage license by the person who performed the ceremony. See id.

Kansas accepts marriage certificates as proof of name change for the purpose of obtaining a driver’s license or nondrivers’ identification. See Kan. Stat. Ann. §§ 8-246, 8-1326; see also http://www.ksrevenue.org/dmvproof.html. Based on various court decisions noted above, it is clear that Kansas statutes, which provide for name changes pursuant to marriage, apply equally to same-sex and opposite-sex couples. Therefore, SSA should accept same-sex marriage documents issued in Kansas on November 13, 2014, and thereafter, as evidence of a name change.

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

In addition to defining marriage as between one man and one woman only, Kansas’ Defense of Marriage Amendment to the Kansas Constitution, Article 15, Section 16, also provided that no relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage. Thus, Kansas law did not provide for the statewide recognition of civil unions or domestic partnerships. Accordingly, this question is inapplicable.^[5]

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

Because the state of Kansas has never had a law authorizing or recognizing civil unions or domestic partnerships, this question is inapplicable.

CONCLUSION

SSA should accept Kansas same-sex marriage documents issued on November 13, 2014, and thereafter, as evidence of a name-change event.

Lisa A. Thomas

Acting Chief Counsel, Region VII

By: Ellie Dorothy

Assistant Regional Counsel

Kansas law permits a man or woman to change his or her name upon marrying to a combination of the person's prior existing name, the spouse's prior existing name, a derivative version of the spouse's existing name or a wholly different name at the time of marriage (including a change to the first name). The member of the married couple must list the name he or she intends to use after marriage on the marriage license.

This legal opinion supersedes the opinion posted to PR 02712.019 for the State of Kansas on April 29, 2003.

I. INTRODUCTION

As you noted, this office previously responded to a request for a legal opinion on whether a marriage certificate was acceptable evidence of name change when a man wishes to change his surname (last name) to that of his wife after marriage, and that such opinion was posted to Policynet as PR 02712.018 Iowa. You are now asking whether there has been a change in Kansas law regarding the adoption of a name change at the time of marriage. Our research of this issue revealed that in Spring 2007, the Kansas legislature passed a new statute addressing a person's ability to change his or her name at the time of marriage. Under the new law, a man is still permitted to change his surname to that of his wife's at the time of marriage.

II. ANALYSIS

An individual who wishes to change the name or other personal identifying information previously submitted in connection with an application for a social security number card may do so by completing and signing an SSA Form SS-5. See 20 C.F.R. § 422.110 (2007). When a request for a name change is made, the individual receives a new social security number card with his or her new name bearing the same number that was previously assigned. See id. A marriage record is a proper form of evidence of identity. See 20 C.F.R. § 422.107(c) (2007).

The regulatory requirements have been further clarified in the Program Operations Manual System (POMS). For United States residents, a legal name change based on a United States marriage is dependent on the laws of the State where the marriage occurred. See POMS RM 00203.210B.1. A marriage certificate is generally acceptable evidence for a legal name change, and if the state where the marriage takes place recognizes marriage as an acceptable name-changing event for the husband, SSA will change the surname of the husband. See POMS RM 00203.210B.1.b.

Kansas previously followed the common law of England, see Kan. Stat. Ann. § 77-109, under which there is no prohibition which would keep a husband from adopting his wife's surname. Under the common law, a person has the right to assume any name he or she lawfully chooses. See 57 Am. Jur. 2d Name § 16 (2002); Sanders v. Sitton, 292 P. 2d 1099 (Kan. 1956); Clark v. Clark, 19 Kan. 522 (1878). This is possible without any legal proceedings, merely by simple usage or habit, absent fraud, misrepresentation, or an interference with the rights of others. See id. Married women and men are free to adopt a name change at will, provided it was done for an honest purpose, without resorting to legal proceedings. See 57 Am. Jur. 2d Name § 40.

Kansas recently enacted a statute which essentially codifies the common law and expressly permits either party to a marriage to change his or her name at the time of marriage. This law became effective on July 1, 2007. See 2007 Kan. Sess. Laws Ch. 162. The new law states:

(a) At the time of marriage, a person may designate a new legal name, by which such person shall subsequently be known. Such name may include a combination of the person's prior existing name and the prior existing name of such person's spouse, or derivative versions thereof.

(b) A person's name, as designated pursuant to subsection (a), shall be recorded on the marriage license issued to such person, along with such person's name at the time of the person's application for such license, which shall be described thereon as the person's former name.

(c) The change to the person's new legal name shall be effective upon the endorsement of the person's marriage license with the certificate of marriage of the person who performed the marriage ceremony pursuant to K.S.A. 23-109, and amendments there to.

(d) A certified copy of a person's marriage license endorsed with a certificate of marriage pursuant to K.S.A. 23-109…shall constitute proof of identity for the purposes of issuance of any Kansas driver's license or nondriver's identification card.

Accordingly, if an individual wishes to change his or her name upon marrying, he or she must indicate such name on the marriage license. The name may be a combination of the person's prior existing name and the spouse's prior existing name, or a derivative version of the spouses' prior existing names. Therefore, if a husband indicates on the marriage license that he will be using his wife's surname, it is correct to amend the husband's name in SSA records, upon his proper request, to reflect the name that is selected on the marriage license.

You also asked whether an individual would be permitted to change his or her name such that the middle name becomes the first name, the maiden name becomes the middle name, and the spouse's surname becomes the last name. Based on the current language of the statute this type of name change is permissible.

Finally, you asked whether the new law would allow individuals to change their name to a wholly different name. Research into the history of this law shows that an earlier version of the bill stated the new name "shall include a combination of the person's prior existing name and the prior existing name of such person's spouse, or derivative versions thereof." A Conference Committee was held on April 2, 2007, during which legislators agreed to change "shall" to "may" and discussions with the Reviser of Statutes Office revealed that the intent was indeed to permit any type of name change at the time of marriage. Accordingly, pursuant to the new Kansas law, a person may change his or her name to a wholly different name at the time of marriage. However, if a person chooses to change to a wholly different surname, the marriage document alone is not sufficient evidence of identity to obtain a replacement SSN card. POMS RM 00203.210B.1.d. The individual must also submit an appropriate identity document showing the new last name. POMS RM 00203.200E. The POMS do not contemplate a situation in which a person changes to a wholly different first name at the time of marriage; accordingly, such requests would need to be handled on a case-by-case basis.

III. CONCLUSION

Based on the new Kansas law, it is permissible for a man to change his last name to that of his wife's at the time of marriage by listing that name on the marriage license. Individuals may also begin using their middle name as their first name and maiden name as middle name at the time of marriage, or may change to a wholly different name. In the latter situation, however, the marriage certificate would not be sufficient evidence of identity.

This request asked only about the change in Kansas law. However, PR 02712.018 addresses the laws in all four states of the region. Please advise this office if you would like a legal opinion updating the law in all four states.

Kristi A. S~ III

Chief Counsel, Region VII

By: Kristin L. E~

Assistant Regional Counsel

The Kansas City Region VII OGC responded to a request for a legal opinion on whether a marriage certificate was acceptable evidence of name change when a man wishes to change his surname (last name) to that of his wife after marriage. The procedures in POMS RM 00203.210 should be followed by each state in Region VII with regard to change of name on an SSN record because of marriage. A marriage certificate is acceptable evidence for a name change dependant on the state where the marriage takes place.

Iowa

Iowa Law provides that when individuals are married they indicate on the application for a marriage license the adoption of a name change. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses). The member of the married couple must list the surname he or she intends to use after marriage, on the application for a marriage license.

Kansas

Kansas follows common law, under which there is no prohibition which would keep a husband from adopting his wife's surname. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses).

Missouri

Missouri follows common law, under which there is no prohibition which would keep a husband from adopting his wife's surname. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses).

Nebraska

Nebraska follows common law, to the extent that it is not inconsistent with the Constitution or other laws of the state. There is nothing in Nebraska law or custom to prohibit a husband from adopting his wife's surname at the time of marriage. The wife may change to the husband's surname, the husband may change to the wife's surname, or both may change to a new name (i.e. double surname of both spouses).

You requested a legal opinion regarding whether a marriage certificate was acceptable evidence of name change when a man wishes to change his surname (last name) to that of his wife after marriage. You noted that you were unable to determine if marriage itself was an acceptable name change event in Missouri, Kansas, and Nebraska. You further noted that in Iowa, when the marriage license application is made, the individuals declare what surname they intend to use after marriage. Accordingly, for marriages in Iowa, you stated that SSA has used the marriage certificate as valid proof of identify for changing numident records. We believe that it is proper to follow the procedures in POMS RM 00203.210 in each state within Region VII with regard to change of name because of marriage.

Analysis

An individual who wishes to change the name or other personal identifying information previously submitted in connection with an application for a social security number card may do so by completing and signing an SSA Form SS-5. See 20 C.F.R. § 422.110 (2002). When a request for a name change is made, the individual receives a new social security number card with his or her new name bearing the same number that was previously assigned. See id. Evidence of identify must be submitted, and may consist of a driver's license, identify card, or marriage record, along with other documents not relevant here. See 20 C.F.R. § 422.107(c) (2002).

The regulatory requirements have been further clarified in the Program Operations Manual System (POMS). A marriage certificate is acceptable evidence for a change of name. See POMS RM 00203.210, "Changing Numident Data." Furthermore, if in the state where the marriage takes place, the state recognizes the marriage as an acceptable name-changing event for the husband, SSA will change the surname of the husband. See POMS RM 00203.210, "Changing Numident Data."

As you noted in your request, in Iowa when individuals are married, they list on the license the surname they intend to use after marriage. For your future reference, we note that this is codified in section 595.5 of the Iowa Code. "A party may indicate on the application for a marriage license the adoption of a name change" and "these names shall become the legal names of the parties to the marriage." Iowa Code Ann. § 595.5 (2001). Therefore, in Iowa it is correct to amend a husband's name in SSA records, upon his proper request, to reflect the name that is selected on the marriage license.

Concerning the other states in our region, Kansas, Nebraska, and Missouri, these states all follow the common law, under which there is no prohibition which would keep a husband from adopting his wife's surname. In these states, there are no statutes that govern name changes at the time of marriage. Under the common law, a person has the right to assume any name he or she lawfully chooses. See 57 Am. Jur. 2d Name § 16 (2002). This is possible without any legal proceedings, merely by simple usage or habit, absent fraud, misrepresentation, ^[6] or an interference with the rights of others. See id. There is nothing in the common law that would prohibit even a foolish choice of name. See id. At the time of marriage, the right of a woman to continue to use her maiden name is established, and the common-law rule that a person may use any name (absent fraud or misrepresentation) is given as the basis for allowing a woman to adopt her maiden name or change her name. See 57 Am. Jur. 2d Name § 9 (2002). Married women and men are free to adopt a name change at will, provided it was done for an honest purpose, without resorting to legal proceedings. See 57 Am. Jur. 2d Name § 40. Likewise, an individual has the right to resume the use of their former name, absent fraudulent purposes, at the time of the dissolution of marriage. See 57 Am. Jur. 2d Name § 41.

Missouri adopted the common laws of England which are of a general nature and which have not been invalidated, expressly or impliedly, by the U.S. or Missouri Constitution or the Missouri Statutes. See Matter of N~, 527 S.W. 2d 402 (Mo. App. 1975); Mo. Rev. Stat. § 1.010 (2002). Historically, the husband and wife customarily adopted the name of the spouse with the most property and since men typically held more property than women, most women took the husband's name. See Matter of N~, 527 S.W. 2d at 403. This custom never became law, and the English common law view was that a woman's surname was not bound to her marital status and arose only through her use of a name. See id. at 403-04. Moreover, the right to adopt another name was not limited to males or females. See id. at 404. "The concept that the husband and wife are one, the 'one' being the husband, has been abandoned." Id. "Insistence that a married couple use one name, the husband's, is equally outmoded." Id.

Driver's licenses are the primary State identification document. In Missouri, a marriage certificate is acceptable proof of a change of name for Missouri Driver's License and Motor Vehicle registration purposes. See Missouri Department of Revenue - How Do I, available at http://www.dor.state.mo.us/howdoi/married.htm (viewed 4/24/03). There is nothing in Missouri law or custom to prohibit a husband from adopting his wife's surname at the time of marriage.

In Kansas, the common law has also been adopted in a similar manner as in Missouri. See Kan. Stat. Ann. § 77-109 (2002). Courts in Kansas have long held that "it cannot successfully be denied that a person has a perfect legal right to call himself by any name he chooses, and so long as such name identifies him by reason of his being thus known in the community in which he resides, he would have a perfect right to sue and be sued by such name." Clark v. Clark, 19 Kan. 522 (1878). An individual may adopt any name different from his without fraudulent intent. See Sanders v. Sitton, 292 P. 2d 1099 (Kan. 1956). A name change can be accomplished without any sanction from the court, however, the statutory name change provisions are intended as aids and affirmations of the common law rule, and not as an abrogation or substitution for the informal procedure. See Matter of M~, 706 P.2d 480 (Kan. App. 1985). In Kansas, a certified marriage certificate is an acceptable document to change the surname on an individual's driver's license. See Kansas Department of Revenue, available at http://www.KSRevenue.org/dmvproof.htm (viewed 4/24/03). There is nothing in Kansas law or custom to prohibit a husband from adopting his wife's surname at the time of marriage.

Nebraska has likewise adopted the common law of England, to the extent that it is not inconsistent with the Constitution or other laws of the state. See Neb. Rev. St. § 49-101 (2002). "In general, in the absence of statutory prohibition, a person, without abandoning his real name, may adopt or assume any name, wholly or partly different from his name, by which he may become known, and by which he may transact business, execute contracts, and carry on his affairs, unless he does so in order to defraud others, or he is inhibited by judicial adjudication, since it is the identity of the individual that is regarded, and not the name which he may bear or assume." Fidelity & Deposit Co. of Md. v. Bodenstedt, 104 N.W.2d 292 (Neb. 1960) (quoting 65 C.J.S. Names § 9, p. 9.). In Nebraska, change of name statutes do not supersede the common law, but affirm that right and afford an additional opportunity to change names. See Simmons v. O'Brien, 272 N.W.2d 273 (Neb. 1978). In Nebraska, a certified marriage license is satisfactory to change the name on an individual's driver's license. See Nebraska Department of Motor Vehicles - Frequently Asked Questions, available at http://www.dmv.state.ne.us/dvr/faq (viewed 4/24/03). There is nothing in Nebraska law or custom to prohibit a husband from adopting his wife's surname at the time of marriage.

Telephone calls to Driver's License offices and County Treasurers in the States of Kansas, Missouri, and Nebraska, revealed that no office had any difficulty with changing the records of a husband's surname to his wife's surname upon presentation of a marriage certificate. It did not appear that this was an uncommon request.

We believe that it is proper to follow the procedures in POMS RM 00203.210 in each state within Region VII with regard to change of name because of marriage. There is no law in Missouri, Kansas, or Nebraska that prohibits a husband from adopting his wife's surname as his own at the time of marriage. Absent suspicions of fraud or misrepresentation, a recent marriage certificate is acceptable evidence for a name change in these states. In Iowa, the marriage license must list the name that the individual intends to use.

Please note that this opinion should not be considered precedential for other situations in which an individual wishes to change his or her name.

Frank V. S~III

Chief Counsel, Region VII

By: Bert W. C~

Assistant Regional Counsel