TN 25 (05-14)

PR 02712.025 Michigan

A. PR 14-075 Request for Six State Legal Opinion on Laws Concerning Changing a Name in the Event of Marriage – REPLY

DATE: April 15, 2014

1. SYLLABUS

For enumeration purposes, Social Security accepts name changes to an entirely “new name” (different first name or a last name that cannot be derived from the marriage document) when the change is permitted under statutory law or when the marriage document has an entry specifying the “new name” as the name to be used after marriage.

Accept a marriage document issued in Minnesota as a valid name change event for a person to change their name to an entirely new name (different first name or a last name that cannot be derived from the marriage document) provided the document has an entry specifying the “new name” as the name to be used after marriage.

DO NOT accept a marriage document issued in Illinois, Indiana, Michigan, Ohio and Wisconsin (the remaining five states in this region) as a valid name change event for a person to change their name to an entirely new first name or to a last name that cannot be derived from the marriage document.  These states do not have a statute which expressly allows such a change in the event of marriage.  In addition, marriage documents issued in these states do not include an entry specifying the “new name” that will be used after marriage.

2. OPINION

 QUESTION PRESENTED

You have asked us to update Legal Precedent Opinion PR 10-093, dated April 29, 2010, regarding laws concerning changing a first, last, or full name in the event of marriage.  You have also asked about a specific incident whereby both members of a married couple attempted to change their last names to names other than those of either spouse.  

SHORT ANSWER

We have updated Legal Precedent Opinion PR 10-093 to address agency name changes when the name change event is a marriage in each of the states in Region V.  We have specifically addressed whether, under agency rules, a person is allowed to change his or her first name, as well as whether a person is allowed to change his or her last name to a name other than that of his or her spouse. 

We conclude that the agency may recognize a marriage as a valid name change event in Minnesota for a person wishing to change either his or her (1) first name or (2) last name to a name other than that of his or her spouse because (a) Minnesota has a statute which expressly allows for such a change, and (b) the marriage license in Minnesota has an entry which allows the couple to specify the new name to be used.  However, the agency should not recognize marriage as a valid name change event in the remaining five states in this region for a person wishing to change his or her (1) first name or (2) last name to a name other than that of his or her spouse because those states do not have (a) statutes which expressly allow for such a change in the event of marriage or (b) entries on their marriage documents for the applicants to specify what new name will be used, as required under POMS RM 10212.055B.   

With respect to the specific question posed to us regarding the Michigan couple proposing to change their last names to the name of the groom’s father, we conclude that the requested name change is not included in the exhaustive list of acceptable name changes found in POMS RM 10212.055B, and also does not fall within either the “Exception” or “Note” of that POMS section. Accordingly, the requested name change should not be permitted under the agency’s current interpretation of its policy related to name changes in the event of marriage, pursuant to POMS RM 10212.055B.

In reaching our conclusion to the question posed, we determined that the agency may have the discretion to interpret its current policy on this issue more broadly, and, even if the agency continues with its current policy, it may want to consider updating POMS RM 10212.055B to clarify its position with regard to permissible name changes in the event of marriage. We have explained the agency’s broad statutory authority, below, and have also included proposed language to clarify the agency’s current policy.

Discussion

1. Agency Policy Discussion

When a number holder (NH) applies for a replacement Social Security Number (SSN) card to reflect a name change, the agency must determine whether the name change is valid pursuant to agency policy. POMS RM 10212.010.  Although, in the past, the agency looked exlusively to state law in order to determine whether a name change was valid, this policy became more restrictive in recent years due to the agency’s efforts to comply with the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). Pub. L. 108-458. 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). 

Under current agency policy, the agency will not honor a request to change a name based merely on a common law For your reference, common law refers to law made by judges through decision in specific cases.  The common law currently used in the United States originated in England. This is different from statutory law, which is created by statutes enacted by the legislature. BLACK’S LAW DICTIONARY 113 (Pocket ed. 1996). right to use a new name.  Rather, the individual must show evidence of a name change event, as well as evidence of the NH’s identity and evidence of the new name. See POMS RM 10212.010, 10212.015, 10212.020.  A marriage is considered an acceptable name change event for a change in the last name if the new last name can be derived from the marriage document A “marriage document” is defined as a marriage certificate, souvenir certificate, or certified copy of marriage records, all of which are acceptable evidence of a name change. “Marriage records” refers to the original marriage record kept by the official custodian.  POMS RM 10212.025See also POMS RM 10210.085 for a description of acceptable forms of evidence. in one of the ways listed in POMS RM 10212.055(B). See POMS RM 10212.010, 10212.025, 10212.055.  Specifically, pursuant to current agency policy, an individual may change his or her last name in the event of marriage if the individual takes his or her spouse’s last name or one part of the spouse’s compound last name, or if the individual’s new last name is a compound name (with or without a hyphen) of each spouse’s original last name. POMS RM 10212.055(B).  A list of permissible name change scenarios is listed in POMS ROM 10212.055(B), which, we have confirmed, has been interpreted as exclusive by OISP.

However, the agency recognizes that some states permit an individual to change his or her first name, or to take an entirely new last name that cannot be derived from the marriage document as described in POMS RM 10212.055(B).  In such instances, there must be either (a) a state statute that expressly allows for a person to change his or her first name or to choose an entirely new last name in the event of marriage, or (b) an entry on the marriage document specifying what new name will be used. POMS RM 10212.055B (Exception and Note).  Regional Chief Counsel precedent should indicate when a state (a) has a statute which allows such a name change to occur or (b) includes an entry on the marriage document that specify what new name will be used .  POMS RM 10212.055 (citing POMS PR 02712.000).   

2. State-By-State Analysis

You have asked us to review the laws in our six-state region to determine whether the agency may recognize marriage as a valid name-change event for an individual to change a first name or a last name to a name other than that of his or her spouse, based on the agency’s current interpretation of agency policy pursuant to POMS RM 10212.055. Our review of state law shows:

Illinois

Illinois follows the common law rule whereby an individual may lawfully change his or her name, absent any statutory restriction, without resort to any legal proceedings, and for all purposes the name assumed will constitute his or her full legal name.  Reinken v. Reinken, 351 Ill. 409, 413 (Ill. 1933). Illinois has enacted a statute that provides a procedure by which a name change may be accomplished by court decree. Id.  However, Illinois does not statutorily allow a person to change either his or her first name or his or her last name to a name other than that of his or her spouse in the event of marriage. See 750 ILL. COMP. STAT. 5/101 et seq. (relating to marriage).

Although Illinois common law may recognize the validity of changing a first name or a last name that cannot be derived from the marriage document as described in POMS RM 10212.055B in the event of marriage, the agency would not recognize the name change because Illinois does not have a statute which expressly allows for either such change in the event of marriage.  See 750 ILL. COMP. STAT. 5/101 et seq. (relating to marriage); POMS RM 10212.055(B) (Exception). Additionally, Illinois’s marriage documents do not include an entry specifying what new name will be used.  See POMS RM 10212.055B (Note); PR 02712.000.

Indiana

Indiana follows the common law rule whereby an individual may lawfully change his or her name, absent any statutory restriction, so long as the change is not effected for a fraudulent purpose. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1262 (In. Ct. App. 1980). Indiana has enacted a statute that provides a procedure by which a name change may be accomplished by court decree. Id.; IND. CODE § 34-28-2-1 (1998).  The statute does not repeal the common law rule; it merely furnishes an additional method of effecting a name change. D.R.S., 412 N.E.2d at 1262 (citing Petition of H~, 262 Ind. 150, 152 (Ind. 1974)).  Thus, in the event of marriage, an individual in Indiana may choose any new name, including a new first name or an entirely new last name that is not the last name of his or her spouse, so long as he or she is not doing so for fraudulent purposes.

Although Indiana common law may recognize the validity of changing a first name or a last name to a new name that cannot be derived from the marriage document as described in POMS RM 10212.055B in the event of marriage, the agency would not recognize the name change because Indiana does not have a statute which expressly allows for such a change in the event of marriage. See IND. CODE § 31-11-x-x (relating to marriage); POMS RM 10212.055(B)(Exception). Additionally, Indiana’s marriage documents do not include an entry specifying what new name will be used. See POMS RM 10212.055B(Note); PR 02712.000.

Michigan

Michigan follows the common law rule whereby a married couple can take any name of their choosing, including changing a first name or changing a last name to a name other than that of one of the spouses, so long as the motive for changing the name is free of fraud.  In Piotrowski v. Piotrowski, 247 N.W.2d 354, 355 (1976), the Michigan appellate court observed that, under common law, a person may adopt any name he or she wishes, without resort to any court and without any legal proceedings, provided it is not done for fraudulent purposes.  There is no requirement that any person go through the courts to establish a legal change of name. Id.  Thus, in the event of marriage, an individual in Michigan may choose any name, including a new first name or an entirely new last name that is not the last name of his or her spouse, so long as he or she is not doing so for fraudulent purposes.

However, although Michigan common law may recognize the validity of changing a first name or a last name to a new name that cannot be derived from the marriage document as described in POMS RM 10212.055B in the event of marriage, the agency would not recognize the name change because Michigan does not have a statute which expressly allows for such a change in the event of marriage. See MICH. COMP. LAWS § 551.xx (relating to marriage); POMS RM 10212.055(B)(Exception).  Additionally, Michigan’s marriage documents do not include an entry specifying what new name will be used. See POMS RM 10212.055B(Note); PR 02712.000.

Minnesota

Minnesota has expressly allowed for a person to change his or her full name in the event of marriage through statute. Minnesota Statute § 517.08(1a)(8), concerning the application for a marriage license, allows for both parties to state their full names prior and subsequent to the marriage. The marriage license also must list the full names of the parties both before and after the marriage. MINN. STAT. § 517.08(1b)(a).  Therefore, the agency should recognize marriage as a valid name change event in Minnesota for a person wishing to change either his or her first name, or his or her last name to an entirely new name that cannot be derived from the marriage document as described in POMS RM 10212.055B, so long as the new name requested is shown on the marriage license. See POMS RM 10212.055(B)(Exception); 10212.055B(Note).

Ohio

Ohio follows the common law rule that a person may adopt any name he may choose so long as such change is not made for fraudulent purposes. In re B~ et al., 771 N.E.2d 846 (2002). Ohio courts have also recognized restrictions on this right where such a name change would frustrate administration of state laws. In re W~, 2004 WL 1238603 (Oh. Ap. Ct. 2004) (unreported) (holding that it was not an abuse of discretion for the trial court to deny a registered sex offender’s petition for a name change where such a change could frustrate state requirements that sexual offenders register for ten years).

Ohio has enacted a statute describing the process by which a person may change his or her name by filing an application in the probate court of the county in which the person resides. OHIO REV. CODE ANN. § 2717.01.  The statute does not repeal the common law rule; it merely furnishes an additional method of effecting a name change. Id. Ohio also statutorily provides, upon divorce or annulment, for the restoration of a person’s name prior to his or her marriage. OHIO REV. CODE ANN. §§ 3105.16, 3105.34. However, Ohio does not statutorily allow a person to change his or her first name or his or her last name to a name other than that of his or her spouse in the event of marriage.  See OHIO REV. CODE ANN. § 3101.05.

Although Ohio common law may recognize the validity of changing a first name or a last name to a new name that cannot be derived from the marriage document as described in POMS RM 10212.055B in the event of marriage, the agency would not recognize the name change because Ohio does not have a statute which expressly allows for such a change in the event of marriage. See OHIO REV. CODE ANN. § 3101.05 (relating to marriage); POMS RM 10212.055(B)(Exception).  Additionally, Ohio’s marriage documents do not include an entry specifying what new name will be used. See POMS RM 10212.055B(Note); PR 02712.000.

Wisconsin

Wisconsin follows the common law rule that any resident may change his or her name. Kruzel v. Podell, 67 Wis.2d 138, 153 (Wis. 1975). Wisconsin Statute § 786.36 also provides for name change upon petition to the circuit court where the petitioner resides “if no sufficient cause is shown to the contrary.” WIS. STAT. § 786.36 (1979).  Sufficient cause includes “fraud or misrepresentation akin to fraud.” K~, 67 Wis.2d at 153. Wisconsin courts have confirmed that state statutes relating to name changes are merely a recognition of the common law rule and do not abrogate the common law.  Id. at 150-52; see WIS. STAT. § 786.36 (1979). Therefore, there is no express limitation on the ability to change one’s name in the event of marriage absent fraud.

By statute, Wisconsin expressly allows either spouse, upon divorce, to resume a former legal last name. WIS. STAT. § 767.395 (2007).  However, no Wisconsin statute expressly permits a person to change his or her first name or his or her last name to a name other than that of his or her spouse in the event of marriage. See WIS. STAT. § 765.001 et seq. (relating to marriage).

Although Wisconsin common law may recognize the validity of changing a first name or a last name to a new name that cannot be derived from the marriage document as described in POMS RM 10212.055B in the event of marriage, the agency would not recognize the name change because Wisconsin does not have a statute which expressly allows for such a change in the event of marriage. See WIS. STAT. § 765.001 et seq. (relating to marriage); POMS RM 10212.055(B)(Exception).  Additionally, Wisconsin’s marriage documents do not include an entry specifying what new name will be used. See POMS RM 10212.055B(Note); PR 02712.000.

3. Application of Current Interpretation of Agency Policy to Facts in This Matter

A Michigan couple married in July 2012 and sought to change their names with the agency for purposes of receiving replacement SSN cards. Dmitri sought to change his name to Dmitri and Rachelle sought to change her name to Rachelle.  V~ is the last name of the groom’s father.

The proposed new last name, “V~,” was not part of the groom’s or bride’s name before marriage, and is, accordingly, not an acceptable name change pursuant to the exhaustive list of acceptable name changes found in POMS RM 10212.055B.  We also considered whether the name change would be acceptable for agency purposes pursuant to the “Exception” and “Note” under POMS RM 10212.055B. 

As noted above, the “Exception” provides that, if state statutory law permits a name change, the name change document is acceptable evidence of a name change in the event of marriage for agency purposes.  Because Michigan does not have such a statute, the “Exception” does not provide an avenue for the couple to change their names as requested. 

Also as noted above, the “Note” provides that, “[i]f the document itself has an entry specifying what new name will be used, the SSN card must be issued in the legal name specified on the document.  Neither the Michigan marriage certificate nor marriage license include such an entry. We considered whether a “signature” line on the marriage license, on which both spouses signed their new last names, could meet the requirements of the “Note,” but determined that it could not. A signature line does not indicate an intent by the state to allow the couple to change their names to any name they desire.  We believe the language of the Note requires a more specific entry that explicitly instructs the couple to enter their new chosen names. If a signature line were enough to meet this requirement, we believe it would allow any name change in the event of marriage in almost every state, as a signature line on the marriage certificate appears to be quite common.  This would frustrate the intent of the policy, which is designed to limit the circumstances in which certain name changes can be effected. Accordingly, we do not believe that the “Note” in POMS RM 10212.055B permits the requested name change in this matter.

4. Recommendations

In researching this question, we became aware of several ambiguities in POMS RM 10212.055B, as currently drafted, and recommend that OISP revise POMS RM 10212.055B to clarify its desired policy.

First, we note that the list of permissible changes to the last name, located at POMS RM 10212.055B, could be interpreted as either exclusive or non-exclusive as the policy is currently written.  If the list is interpreted as exclusive, then the requested name change at issue in this case would not be permissible, as discussed above. However, if the list is interpreted as non-exclusive, i.e., if the list is merely a list of examples of permissible name changes that could be “derived from” the name change document, then the requested name change is arguably permissible.  Specifically, in the matter upon which we were requested to comment, the groom wishes to change his last name to a combination of his last name at birth and his father’s last name. The wife wishes to change her last name to the groom’s father’s last name. Neither of these changes are encompassed by the list of acceptable name changes found at POMS RM 10212.055B. However, Michigan requires that the names of the parents of both spouses be listed on the marriage license.  Thus, the groom’s father’s last name is listed on the marriage license and the requested name change could arguably be “derived from” the name change document.  Accordingly, if the list of acceptable name changes found at POMS RM 10212.055B were to be interpreted as exemplary only, i.e., non-exclusive, then we would recommend that this particular name change request be allowed.

We discussed this ambiguity with OISP, which informed us that it consistently interprets the list of acceptable name changes to be exclusive. If the agency wishes to stay with current policy, then we recommend that the POMS language be modified to reflect that the list is intended to be exclusive. However, upon reviewing the grant of statutory authority to the agency under the IRTPA , it appears that the agency’s statutory authority is very broad.  The IRTPA directs 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.” IRTPA, Pub. L. 108-458, § 7213. Nothing in the statute requires the agency to interpret the list of acceptable name changes as exclusive.  Rather, the agency has broad statutory authority to determine acceptable name changes based on any name-change event, including marriage.  However, because the legislative purpose behind the IRTPA is to minimize the ability of terrorists from being able to obtain fraudulent documents, it is sensible for the agency to maintain guidelines that would prevent NHs from obtaining replacement SSN cards under new names for fraudulent purposes. Having policy guidelines in place, as the agency currently does, to limit name changes based on marriage to the designated list, accomplishes that purpose.  Nonetheless, limiting permissible name changes to those listed at POMS RM 10212.055B is perhaps more restrictive than required. Any name change that can be “derived from” the name change document (whether on the list or not), is likely to be linked to one of the spouse’s families and, thus, would appear to comport with the IRTPA.

The second ambiguity we recognized relates to the “Exception” and “Note.” It is confusing that these are not both considered “Exceptions” or both considered “Notes” or, more appropriately, are not simply part of the main language of POMS RM 10212.055B, as OISP has determined that each provides an additional way in which an acceptable name change can be effected. Consequently, we recommend revising the language to include the “Exception” and “Note” as numbered sub-sections to the main language in POMS RM 10212.055B. 

Thus, if the agency determines that it does not wish to alter its current interpretation of its policy relating to name changes in the event of marriage, we would propose the following updates:

B. Evidence of a new name

Accept a name change document based on marriage, civil union or domestic partnership as evidence of the new name to be shown on the card, if any of the following are present:

(1) The new name can be derived from the document. For a name change to be permitted under this section, the requirement that the new name be “derived from the document” shall include only the following changes to the last name, using the names shown on the evidence:

  • bride takes the groom’s last name;

  • groom takes bride’s last name;

  • spouse or partner takes the other parties’ last name;

  • spouse or partner takes one part of the other parties’ compound surname;

  • compound name (with or without hyphen) of each spouse’s or partner’s original surname for either or both parties; or

(2) An entirely new first and last name, as shown on the name change document, is permitted under statutory law per Regional Chief Counsel Precedent. To determine if the request for a change to the first name is permitted based on a marriage document, see PR 02712.000, State Law on Name Changes based on Marriage; or

(3) The document itself has an entry specifying what name will be used. If this requirement is met, the SSN card must be issued in the legal name specified on the document.

CONCLUSION

In conclusion, we advise that the agency should recognize a marriage as a valid name-change event in Minnesota for a person wishing to change either (a) his or her first name or (b) his or her last name to a name other than that of his or her spouse because Minnesota has enacted a statute that expressly allows for such a name change and has an entry specifying what new name will be used on its marriage document.  However, we advise that the agency should not recognize marriage as a valid name change event for the remaining five states in this region for a person wishing to change (a) his or her first name or (b) his or her last name to a name other than that of his or her spouse because these states have not enacted statutes which allow for such a name change in the event of marriage and do not have an entry specifying what new name will be used on their respective marriage documents.

With respect to the specific question posed to us regarding the Michigan couple proposing to change their last names to the name of the groom’s father, we recommend that this name change should not be permitted under the agency’s current interpretation of its policy related to name changes in the event of marriage, pursuant to POMS RM 10212.055B.

Donna L. Calvert
Regional Chief Counsel,
Region V
By__________
Gina M. Gebhart

B. PR 10-093 SSI – Request for Six State Legal Opinion on Laws Concerning Changing a First Name in the Event of Marriage – REPLY

DATE: April 29, 2010

1. SYLLABUS

Under current SSA policy, SSA requires that there must be a state statute which expressly allows for a first name to be changed in the event of marriage in order for it to be considered a valid name change for Social Security Purposes.

SSA accepts a marriage as a valid name change event in Minnesota for a person to change both their first and last name, if the new name can be derived from the marriage document because Minnesota has a statute which expressly allows for such a name change.

SSA does not accept a marriage in the states of Illinois, Indiana, Michigan, Ohio and Wisconsin (the remaining five states in this region) as a valid name change event for a person to change a first name because these states do not have a statute for a first name to be changed in the event of marriage

2. OPINION

You have asked whether a person is allowed to change his first name in addition to his surname when the name change event is a marriage in each of the states in Region V. We conclude that SSA may recognize a marriage as a valid name change event in Minnesota for a person wishing to change his first name in addition to his surname because Minnesota has a statute which expressly allows for such a change. However, SSA should not recognize marriage as a valid name change event in Illinois, Indiana, Michigan, Ohio, and Wisconsin for a person wishing to change a first and last name because those states do not have statutes which expressly allow for such a change in the event of marriage. Although these states follow the common law rule which may allow a person to change a first name in the event of marriage (or at any other time), Social Security policy requires that a state enact a statute which expressly allows for a first name to be changed in the event of marriage in order for it to be considered a valid name change for Social Security purposes. Our research on this issue has also revealed that the precedential opinion POMS PR 03-117, Region V - Six-State Survey of State Laws Regarding Name Changes Due to Marriage (April 9, 2003), is now outdated due to subsequent changes in Agency policy. See POMS PR 05005.016, 05005.017, 05005.025, 05005.026, 05005.039, 05005.055. Therefore, we recommend that this precedential opinion be removed from the POMS.

Discussion

Under current SSA policy, SSA will not honor a request to change a name based merely on a common law1 right to use a new name. Rather, the individual must show evidence of a name change event. See EM-06064; see also POMS RM 10212.055.2 Although, in the past, SSA looked exclusively to state law in order to determine whether a name change was valid at the time of marriage, this policy became more restrictive in recent years due to SSA’s efforts to comply with the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). Pub. L. 108-458.

A person must now show evidence of a name change event, evidence of a new name, and evidence of the number holder’s identity. See POMS RM 10212.055. Marriage is considered an acceptable name change event for a change in the last name (surname) if the new name can be derived from the document. Id. However, an exception to this rule exists when an entirely new first and last name is shown on the name change document. In such instance, there must be a state statute which expressly allows for a person to choose an entirely new first and last name in the event of marriage. Id. Regional Chief Counsel precedent should indicate when a state has a statute which allows such a name change to occur. Id. (citing POMS PR 02712.000).

You have asked us to review the laws in our six state region to determine whether SSA may recognize a person’s desire to change a first name at the time of marriage as a valid name change event. Our review of state law shows that five of the six states in our region would allow such a change under the common law, but do not have a statute authorizing such a change. Therefore, SSA should not recognize marriage as a valid name change event for persons wishing to change their first names at the time of marriage in Illinois, Indiana, Michigan, Ohio, and Wisconsin. Only Minnesota has directly expressed through statute the ability to change a person’s first and last names in the event of marriage. Therefore, SSA should recognize marriage is a valid name change event in Minnesota for a person wishing to change both a first and last name, if the new name can be derived from the marriage document.

Illinois

Illinois follows the common law which, in the absence of statutory restriction, allows an individual to lawfully change his name without resort to any legal proceedings. Reinken v. Reinken, 184 N.E. 639, 640 (Ill. 1933). Furthermore, although the Illinois statute that provides a procedure by which a name change may be accomplished by court decree, this is not an exclusive procedure, but merely abrogates the common law right of the individual to change his name without application to the courts. Id. Since Illinois has no statute to the contrary, a married individual may choose any first or last name, so long as the individual is not doing so for fraudulent purposes. Compare Chaney v. Civil Service Comm’n, 412 N.E.2d 497 (Ill. 1980) (holding that a man’s assumption of various aliases in order to unlawfully procure liquor licenses exceeded the common law right to change one’s name without application to the courts).

However, although Illinois common law may recognize the validity of changing a first name in the event of marriage, SSA would not recognize the name change because Illinois does not have a statute which expressly allows for a person to change his or her first or full name in the event of marriage. See POMS RM 10212.055(B)(Exception).

Indiana

Indiana follows the common law rule that an individual may change his name at will so long as the change is not effected for a fraudulent purpose. D.R.S. v. R.S.H., 412 N.E.2d 1257, 1262 (1980); see also POMS PR 05005.016. Furthermore, the Indiana statute that provides a procedure by which a name change may be accomplished by court decree “does not repeal the common law rule; in merely furnishes an additional method of effecting a name change.” D.R.S., 412 N.E.2d at 1262. Since Indiana has no statute to the contrary, a married individual may choose any first or last name, so long as the individual is not doing so for fraudulent purposes.

However, although Indiana common law may recognize the validity of changing a first name in the event of marriage, SSA would not recognize the name change because Indiana does not have a statute which expressly allows for a person to change his or her first or full name in the event of marriage. See POMS RM 10212.055(B)(Exception).

Michigan

In Michigan, it appears that a married couple can take any name of their choosing, including changing a first name, so long as the motive for changing the name is free of fraud. In Piotrowski v. Piotrowski, 247 N.W.2d 354, 355 (1976), the Michigan appellate court observed that, under the common law, a person may adopt any name he or she wishes, without resort to any court and without any legal proceedings, provided it is not done for fraudulent purposes. There is no requirement that any person go through the courts to establish a legal change of name. Id. Thus, a married individual in Michigan may choose any name including a first name, so long as he or she is not doing so for fraudulent purposes.

However, although Michigan common law may recognize the validity of changing a first name in the event of marriage, SSA would not recognize the name change because Michigan does not have a statute which expressly allows for a person to change his or her first or full name in the event of marriage. See POMS RM 10212.055(B)(Exception).

Minnesota

Minnesota has expressly allowed for a person to change his or her full name in the event of marriage through statute. Minnesota Statute section 517.08(1a)(8), concerning the application for a marriage license, allows for both parties to state their full names prior and subsequent to the marriage. The marriage license also must list the full names of the parties both before and after the marriage. Minn. Stat. § 517.08(1b)(a). Therefore, SSA should recognize marriage as a valid name change event in Minnesota for a person wishing to change his or her first name to the new name shown on the marriage license. See POMS RM 10212.055(B)(Exception).

Ohio

Ohio follows the common law rule that a person may adopt any name he may choose so long as such change is not made for fraudulent purposes. In re B~ et al., 771 N.E.2d 846 (2002). Ohio courts have also recognized restrictions on this right where such a name change would frustrate administration of state laws. In re W~, 2004 WL 1238603 (Oh. Ap. Ct. 2004) (unreported) (holding that it was not an abuse of discretion for the trial court to deny a registered sex offender’s petition for a name change where such a change could frustrate state requirements that sexual offenders register for ten years).

However, although Ohio common law may recognize the validity of changing a first name in the event of marriage, SSA would not recognize the name change because Ohio does not have a statute which expressly allows for a person to change his or her first or full name in the event of marriage. See POMS RM 10212.055(B)(Exception).

Wisconsin

Wisconsin follows the common law which allows for a person to take any name of his or her choosing, so long as there is no fraudulent motive. Wisconsin has rejected the argument that the event of marriage requires a woman to change her surname, noting that such practice is merely a custom, not a law. Kruzel v. Podell, 226 N.W.2d 458, 462 (1975). The court concluded that the statues of Wisconsin “merely affirm, and do not abrogate, the common law.” Id. at 465. Therefore, there is no express limitation on the ability to change either first or last names in the event of marriage absent fraud.

However, although Wisconsin common law may recognize the validity of changing a first name in the event of marriage, SSA would not recognize the name change because Wisconsin does not have a statute which expressly allows for a person to change his or her first or full name in the event of marriage. See POMS RM 10212.055(B)(Exception).

CONCLUSION

In sum, we believe that SSA should recognize a marriage as a valid name change event in Minnesota for a person wishing to change both a first and last name because Minnesota has a statute which expressly allows for such a name change. However, SSA should not recognize marriage as a valid name change event for the remaining five states in this region for a person wishing to change a first name because these states do not have a statute which allows such a change in the event of marriage.

Donna L. Calvert
Regional Chief Counsel,
Region VII
By__________
Anne Madden

C. PR 09-018 The Use of Keweenaw Bay Indian Community Tribal Marriage and Adoption Decree Documents for the Purposes of Issuing Social Security Cards or Changing Name Data

DATE: November 6, 2008

1. SYLLABUS

Keweenaw Bay Indian Community tribal marriage documents and adoption decrees are acceptable evidence of a name change and identity, respectively, regardless of the person's State of residence.

2. OPINION

You asked whether SSA can use Keweenaw Bay Indian Community tribal court marriage documents and adoption decrees for the purposes of issuing a Social Security Number card and changing name data.

Background

Sarah A. G~ (formerly Sarah A. D~, a member of the Keweenaw Bay Indian Community1 ("KBIC"), was married under KBIC tribal law on July 12, 2008, and has since requested that SSA change her name data to reflect her married name. G~ has presented proof of her marriage that consists of marriage documents issued by a KBIC tribal court. Similarly, Karrie J. W~ (formally Karrie J. K~) was adopted under KBIC tribal law on May 5, 2006, and has since requested the issuance of an SSN card. W~ has presented proof of her identity that consists, in part, of an adoption decree issued by the KBIC tribal court. The local SSA field office has expressed uncertainty as to whether they may rely on KBIC tribal marriage documents to process a legal name change and whether they may rely on KBIC tribal adoption decrees to issue a Social Security card. Some contacts with state officials have suggested that the state of Michigan does not recognize such tribal documents from KBIC.

Discussion

I. KBIC Marriages and Adoptions Should Be Recognized under Federal Law

Federal and state courts have regularly found that Native American tribes retain sovereign authority to regulate domestic issues such as marriage, divorce, and adoption. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978); U.S. v. J~, 409 F.3d 1221, 1225 (10th Cir. 2005); Montana v. United States, 450 U.S. 544, 564 (1981); United States v. Quiver, 241 U.S. 602, 605-606 (1916); Kobogum v. Jackson Iron Co., 76 Mich. 498, 507-509 (1889). Tribal law, rather than state law, governs the validity of such domestic issues, so long as federal law or state law under federal authorization has not superseded the tribe's right to self-governance. J~, 409 F.3d at 1225; Hallowell v. Commons, 210 F.793, 800 (8th Cir. 1914) aff'm Hallowell v. Commons, 239 U.S. 506 (1916). Thus, given that the Keweenaw Bay Indian Community is a federally recognized Indian tribal entity that retains sovereign authority to regulate marriage and divorce amongst its members, SSA should recognize KBIC marriages that are valid under KBIC tribal law. With regard to tribal adoption decrees, the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963, provides that an "Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides on or is domiciled within the reservation of such tribe." 25 U.S.C. § 1911(a). Thus, since KBIC retains sovereign authority to regulate marriage and adoption amongst its tribal members and there is no indication that the marriage and adoption procedures in question were not in accordance with KBIC Tribal Code, SSA should recognize KBIC marriage and adoption documents, regardless of whether the state of Michigan would recognize such documents.

II. KBIC Tribal Marriage Documents May Be Used for the Purposes of Changing Name Data

Having established that KBIC marriages are generally recognized under federal law, the next issue is whether SSA may rely upon KBIC tribal court marriage documents for the purposes of changing name data. A valid marriage document or marriage record may be submitted as evidence to support a legal name change. See Program Operations Manual System ("POMS") RM 00203.210(B). SSA policy generally provides that the Agency need not look to state law to determine whether a state recognizes a domestic or foreign marriage in question for the purposes of a name change request. See EM-06064(A)(1)-(B)(1). We verified with the Office of Income Security Programs that tribal marriage documents are classified as U.S. ceremonial marriage documents for the purposes of changing name data. See 20 C.F.R. § 404.725(a); see also EM-06064(A)(1). Thus, in order to process a name change request, SSA should accept evidence of validly performed KBIC tribal marriages, regardless of whether the state in which the applicant lives recognizes the KBIC tribal marriage documents in question. See EM-06064(A)(1).

A marriage document may, on its own, be used to support a legal name change if (1) the marriage took occurred within the last two years, and (2) the document contains biographical information such as age, date of birth, or parents' names which matches the data on the latest Numident record. See EM-06064(A)(3). If a bride wishes to take the groom's last name, SSA may accept the marriage document as proof for a legal name change for the bride as long as the new name can be derived from the marriage document, even if marriage document only shows each partner's first names, the bride's prior surname, and groom's surname. See EM-06064(A)(2). In this case, the KBIC marriage record indicates that the marriage took place within the last two years and also contains the full name, age, date of birth, address, birthplace, and parents' names of both the bride and the groom. Thus, the KBIC marriage records satisfy SSA's regulations regarding the use of a marriage record for effecting a legal name change and thus should be accepted as proof supporting the desired name change absent any signs of fraud.

II. KBIC Tribal Adoption Decrees May Be Used for the Purpose of Issuing an SSN Card

The Indian Child Welfare Act ("ICWA") provides that an Indian tribe has exclusive jurisdiction over any child custody proceeding (including any decree of adoption) involving an Indian child who resides or is domiciled within the reservation of such tribe. 25 U.S.C. § 1911(a); see also 25 U.S.C. 1903(1)(iv) (defining scope of child custody proceeding). The ICWA also provides that the United States and every state shall give full faith and credit to the records and judicial proceedings of any Indian tribal court applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public records and judicial proceedings of any other entity. 25 U.S.C. § 1911(d). In this case, KBIC has enacted a reciprocity provision in Section 9.104 of the KBIC Tribal Code, which holds that "[f]ull faith and credit shall be given by the [KBIC tribal] court to all orders, judgements, and other process of a civil nature issued by. . .any federal court, and any state court." KBIC Tribal Code § 9.104, available at http://courts.michigan.gov/scao/services/TribalCourts/KeweenawCode.pdf. Thus, as mandated by federal law under the ICWA, SSA must give full faith and credit to adoption decrees issued by the KBIC tribal courts. Therefore, SSA should accept KBIC adoption decrees for the purposes of issuing an SSN card.

Since the KBIC adoption decree contains the child's name, date of birth, and adopting parents' names, the KBIC adoption decree may be used as secondary evidence to establish identity if primary evidence of identity is unavailable. See POMS RM 00203.200(E)(5)(2). Additionally, if the adopted child is simply requesting a name change on their SSN card, the KBIC adoption decree may be used as evidence to support the name change. See POMS RM 00203.210(B)(5).

CONCLUSION

In sum, SSA may rely on KBIC tribal marriage documents to effect a change in name data, regardless of whether or not the state of residence accepts such documents. Also, federal law mandates that SSA recognize KBIC adoption decrees, and thus KBIC adoption decrees may be relied upon to establish the applicant's identity or for a name change request. Thus, SSA may use Keweenaw Bay Indian Community tribal marriage documents and adoption decrees for the purposes of issuing a Social Security Number card and changing name data.

Donna L. Calvert
Chief Counsel, Region VII
By__________
Chad M. Troop
Law Clerk


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502712025
PR 02712.025 - Michigan - 05/22/2014
Batch run: 05/22/2014
Rev:05/22/2014