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 Nebraska as evidence of a name change.

QUESTION PRESENTED

Nebraska recognized same-sex marriage on June 26, 2015, and began issuing same-sex marriage licenses the same day. Should SSA accept marriage documents issued to same-sex couples in Nebraska as evidence of a name-change event.

SUMMARY

Yes. SSA should accept marriage documents issued to same-sex couples in Nebraska on June 26, 2015, and thereafter, as evidence of a name-change event.

BACKGROUND

Article I, Section 29 of the Nebraska Constitution provided that “[o]nly marriage between a man and a woman shall be valid or recognized in Nebraska.” On March 2, 2015, the Federal District Court for the District of Nebraska found that the state’s ban on same-sex marriage was unconstitutional. See Waters v. Ricketts, 48 F. Supp. 3d 1271, 1281-82, 1287-88, 1291 (D. Neb. Mar. 2, 2015). The same day, the state of Nebraska appealed that decision; and, on March 5, 2015, the United States Court of Appeals for the Eighth Circuit stayed the district court’s order requiring Nebraska to recognize and/or allow same-sex marriage. See Waters v. Ricketts, No. 15-1452, Order dated Mar. 5, 2015 (attached). ^[1] On April 29, 2015, the Eighth Circuit Court of Appeals suspended the case pending the United States Supreme Court’s ruling Obergefell v. Hodges, 576. U.S. ___, 135 S.Ct. 2584 (2015) (Obergefell). See Waters, Stay Order dated Apr. 29, 2015 (attached).

On June 26, 2015, the United States Supreme Court issued a decision in 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. See Obergefell, 135 S.Ct. at 2604-05. Nebraska counties began issuing same-sex marriage licenses on June 26, 2015. See Robynn Tysver, ‘Everything we ever hoped for’: Nebraska makes history with first gay weddings, The Kearney Hub, June 26, 2015, available at http://www.kearneyhub.com/news/regional/everything-we-ever-hoped-for-nebraska-makes-history-with-first/article_cd0ad0e4-1c42-11e5-961f-8f4db5a82e3a.html. On June 30, 2015, the Eighth Circuit vacated its previous order staying the district court’s ruling. See Waters, Vacate Order dated June 30, 2015 (attached). On August 11, 2015, the Eighth Circuit Court of Appeals affirmed the district court’s order finding the Nebraska constitutional provision banning same-sex marriage unconstitutional. See Waters v. Ricketts, 798 F.3d 682, 685 (8th Cir. 2015)

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 Program Operations Manual System (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.

Counties in Nebraska began issuing same-sex marriage licenses on June 26, 2015. SSA should treat documents reflecting same-sex marriages that occurred in Nebraska on June 26, 2015, 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.

Nebraska permits name changes based on marriage.^[2] Nebraska Revised Statute § 60-4,120 provides that any person changing his or her name because of marriage must apply for a replacement driver’s license or state identification card within 60 days after the change of name. See also Division of Motor Vehicles, Replacement Licenses (Including Name And/Or Address Changes) (noting that a marriage license is satisfactory evidence of the name change) available at http://www.dmv.nebraska.gov/examining/replacement_process.html. The statute does not contain language that distinguishes between same-sex and opposite-sex marriages. See Neb. Rev. Stat. § 60-4,120. Further, after Obergefell, there can be no legal distinction between the two. Therefore, SSA should accept same-sex marriage documents issued in Nebraska on June 26, 2015, and thereafter as evidence of a name-change event.

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 a man and a woman only, Article I, Section 29 of the Nebraska Constitution stated, “The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.” See also Neb. Op. Att’y. Gen., No. 03004, 2003 WL 21207498, at *2 (Mar. 10, 2003) (domestic partnerships are prohibited by Neb. Const. Art. 1, § 29). Because the state of Nebraska never authorized or recognized civil unions or domestic partnerships, this question is inapplicable.

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

Because the state of Nebraska never authorized or recognized civil unions or domestic partnerships, this question is inapplicable.

CONCLUSION

SSA should accept Nebraska same-sex marriage documents issued on June 26, 2015, and thereafter, as evidence of a name-change event.

Lisa A. Thomas

Acting Chief Counsel, Region VII

By: Ellie Dorothy

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, ^[3] 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