TN 43 (12-15)
PR 02712.028 Missouri
A. PR 16-024 Revised Legal Opinion, State of Missouri – Name-Change Guidance Based on Same-Sex Marriage
DATE: November 12, 2015
Accept marriage documents issued to same-sex couples for marriages that took place on June 25, 2014 or later by jurisdictions (town, county or State) in the State of Missouri as evidence of a name change.
Some jurisdictions in Missouri began issuing same-sex marriage licenses on June 25, 2014. Should SSA accept marriage documents issued to same-sex couples in Missouri on June 25, 2014, and thereafter, as evidence of a name-change event?
Yes. SSA should accept marriage documents issued in Missouri on June 25, 2014, and thereafter, to same-sex couples, as evidence of a name-change event.
Article I, Section 33 of the Missouri Constitution provided that “a marriage shall exist only between a man and a woman.” See also Mo. Ann. Stat. § 451.022 (“It is the public policy of this state to recognize marriage only between a man and a woman”, and no Recorder of Deeds “shall issue a marriage license, except to a man and a woman.”). On June 26, 2015, the United States Supreme Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Obergefell v. Hodges, 576 U.S. --, 135 S.Ct. 2584, 2604, -- L.Ed.2d --, 2015 WL 2473451 (2015). Thus, by issuing this decision on June 26, 2015, the Court invalidated Missouri’s state constitutional amendment and statute prohibiting the issuance of marriage licenses to same-sex couples.
Several counties began immediately issuing same-sex marriage licenses on June 26, 2015. See Alisa Nelson, Missouri counties issuing same-sex marriage licenses, Missourinet.com, available at http://www.missourinet.com/2015/06/26/missouri-counties-issuing-same-sex-marriage-licenses/ (last visited on Sept. 1, 2015). On July 7, 2015, the Missouri Governor issued Executive Order 15-04, requiring all state departments and agencies, and also all counties, municipalities, and other political subdivisions to take immediate and all necessary measures in compliance with the Obergefell decision. See Office of Missouri Governor Jay Nixon, Exec. Order 15-04 (July 7, 2015), available at https://governor.mo.gov/news/executive-orders/executive-order-15-04 (last visited on Sept. 1, 2015).
Before Missouri’s constitutional and statutory provisions were invalidated by the Obergefell decision, three jurisdictions issued marriage licenses to same-sex couples. In particular, the City of St. Louis began issuing licenses to same-sex couples on June 25, 2014. See The City of St. Louis News Release, City of St. Louis Issued Marriage Licenses to Same-Sex Couples (June 26, 2014), available at https://www.stlouis-mo.gov/government/departments/mayor/news/marriage-licenses-to-same-sex-couples.cfm. The County of St. Louis began issuing licenses on November 6, 2014. See Statement of St. Louis County (Nov. 6, 2014), available at http://stlouisco.com/Community/News/Article/925/St-Louis-County-Complies-with-Ruling-on-Gay-Marriage-Ban-Is-Issuing-Marriage-Li. On November 7, 2014, the Jackson County Recorder of Deeds also began issuing licenses to same-sex couples. See Jackson County Office of Public Information News Release, Same-sex marriage licenses to be issued in Jackson County (Nov. 7, 2014), available at http://www.jacksongov.org/content/3275/3615/9834/10419.aspx. The state of Missouri, through Peter Lyskowski, advised the agency that it recognizes as valid the marriage licenses issued to same-sex couples in these jurisdictions dating back to June 25, 2014.
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.
Some jurisdictions in Missouri began issuing same-sex marriage licenses as early as June 25, 2014. The state of Missouri recognizes same-sex marriages solemnized in Missouri beginning on June 25, 2014, and thereafter, as valid. Therefore, SSA should treat documents reflecting same-sex marriages that occurred in Missouri on June 25, 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.
Missouri permits name changes based on marriage. Missouri recognizes both common-law and statutory methods of changing one’s name. “Under the common law, the change of name is accomplished by usage or habit, and under the statutory method, the change is accomplished by court order and public record. The primary difference between the two methods is, therefore, the speed and certainty of the change of name under the statutory procedure.” See Matter of Natale, 527 S.W.2d 402, 405 (Mo. Ct. App. 1975). Thus, following marriage, a person may change his or her name under common law by the usage of the desired new name. See id. at 404. (The common-law right to change one’s name “was never limited to males; indeed, it was through this common law method that a woman changed her surname to that of her husband after marriage.”); see also Neal v. Neal, 941 S.W.2d 501, 502-03 (Mo. 1997) (en banc) (affirming Natale).
By statute, a person may petition the circuit court in the county of his or her residence for a name change. See Mo. Ann. Stat. § 527.270. Public records, such as various licenses, may be amended by presenting proof of name change. See, e.g., Mo. Ann. Stat. § 302.735 (directing commercial driver’s license holders to file an application for a duplicate license upon name change); id. at § 571.104 (furnish proof of name change for concealed carry permit within 30 days of name change). A marriage certificate is acceptable proof of a name change. See Mo. Code Regs. Ann. tit. 12, § 10-24.448 (marriage certificate as proof of name change for driver or non-driver license); Missouri Dep’t of Rev., How do I change my name when I get married? (directing Missouri residents to present a certified marriage certificate, updated social security card, or court order to the driver license office for a change of name on a driver license), available at http://dor.mo.gov/howdoi/married.php (last visited on Sept. 1, 2015).
Laws relating to furnishing proof of marriage and petitioning for a name change, as well as case law discussing name change by common law, are gender neutral and do not distinguish between same-sex and opposite-sex spouses. Further, based on Obergefell, there can be no distinction in name change procedures between same-sex and opposite-sex marriage. Therefore, SSA should accept same-sex marriage documents issued in Missouri, on June 25, 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.
Because the state of Missouri never authorized or recognized civil unions or domestic partnerships, this question is irrelevant.
4. Whether a prior entered civil union and domestic partnership must be dissolved before entering into a same-sex marriage.
As noted above, because the state of Missouri never authorized or recognized civil unions or domestic partnerships, this question is irrelevant.
SSA should accept same-sex marriage documents issued in Missouri on June 25, 2014, and thereafter, as evidence of a name-change event.
Kristi A. Schmidt
Chief Counsel, Region VII
By: Ellie Dorothy
Assistant Regional Counsel
B. PR 04-077 Request for Legal Opinion on a marriage certificate being acceptable proof of identity to support a request by a man to begin using the woman's last name as a result of that marriage in the four states in our region.
DATE: April 29, 2003
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 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 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 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 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.
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, 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
Bert W. C~
Assistant Regional Counsel
. . No individual may adopt a name with the intent to defraud or misrepresent him or herself. By way of example, an individual may not be permitted to change his name to Santa Claus, because the public has a proprietary interest in the identity of Santa Claus, both in name and persona, and such a name would violate the common law as it would be misleading. See In re Name Change of H~, 736 N.E.2d 125 (Ohio Prob. 2000) (against public policy to grant name change to "Santa Claus").