TN 1 (11-07)

PR 02720.019 Kansas

A. PR 08-028 Request For Revised Legal Opinion Regarding Proof Needed For Name Change Due To Common Law Marriage In Kansas

DATE: October 3, 2007

1. SYLLABUS

Effective July 1, 2007 the common law certificate is no longer acceptable evidence of a common law marriage in the State of Kansas. In order for an individual to change his or her name due to a common law marriage, a court order name change must be submitted. This opinion supersedes PR 07-035 (4/7/06).

2. OPINION

On April 7, 2006, we responded to a "Request For Legal Opinion Regarding Proof Needed For Name Change Due To Common Law Marriage In Iowa and Kansas" due to the passage of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), which required SSA to establish minimum standards to establish eligibility for original and replacement Social Security cards. One of the provisions that was implemented required the SSN card applicant to use his/her legal name and when changing his/her name, the applicant must present a name change document. See POMS RM 00203.200 and RM 00203.210. You have now requested further information regarding the documentation needed in the State of Kansas based on a recent change in the state's documentation requirements. Effective July 1, 2007, the common law certificate is no longer acceptable proof of a name change in Kansas.

The essential elements of a common law marriage in Kansas are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife in public. In re Estate of A~, 993 P.2d 637, 647 (Kan. 1999). In 2006, we responded that a name change due to a common law marriage for state identity purposes could be obtained by presentation of a "common law certificate" which could be obtained at the local driver's license office. Although the common law certificate was never codified by the State of Kansas, the Kansas Department of Revenue listed it as acceptable documentation as proof of name for an original or replacement driver's license or identification card.

As of June 2007, the common law certificate is no longer listed by the Kansas Department of Revenue as an acceptable documentation for proof of name for obtaining a driver's license or identification card. See www.ksrevenue.org/dmvproof.htm. We have learned from the local driver's license office that an internal memorandum stated that as of July 1, 2007, the local driver's license offices were no longer to administer the common-law affidavit. This is most likely due to Kansas Senate Bill 9, which was passed in February 2007, and which became effective July 1, 2007. The purpose of Senate Bill 9 was to improve security for driver's license and identification cards. It effectively amended K.S.A. §§ 8-246 (Replacement Driver's License) and 8-1326 (Duplicate Identification Cards), among other statutes. While the common law does not prevent the change of one's name as a personal preference, in Kansas, satisfactory documentation of proof of name must be made by: (1) certified marriage certificate, U.S., city, county, state issued; (2) certified divorce decree, U.S. with official signature; (3) certified court order of name change, U.S., only; (4) valid U.S. Military identification; (5) Bureau of Indian Affairs Tribal identification card; (6) certified court order of adoption; (7) photo driver's license or identification card issued by a U.S. state; or (8) birth certificate from a U.S. territory or protected territory. See K.S.A. §§ 8-246 and 8-1326; see also www.ksrevenue.org/dmvproof.htm.

Thus, effectively the only way an individual could change his/her name for SSA purposes due to a common law marriage in Kansas, is for the number holder to present a court order of name change. To be acceptable as an identity document it must show, in addition to the new name, the prior name and the person's age or date of birth and the name change event must have occurred within the last two years. See POMS RM 00203.210 (Changing Numident Name Data). When the document does not show both the name on the last numident record and the new name as well as either a photograph or biographical information, or the name change event occurred over two years ago, then the applicant must also submit two identity documents listed in POMS RM 00203.200E, one in the old name and another in the new name. See POMS RM 00203.210.

Kristi A. S~
Acting Chief Counsel, Region VII

By____________
Ann K. R~
Assistant Regional Counsel

B. PR 07-035 Request for Legal Opinion Regarding Proof Needed for Name Change Due to Common Law Marriage in Iowa and Kansas

DATE: April 7, 2006

1. SYLLABUS

In the State of Kansas to change one's name for SSA purposes due to common law marriage in Kansas, the numberholder must present a “common law certificate” and the State of Kansas driver's license or State of Kansas identity card reflecting the new name. The “common law certificate” can be obtained at a local State of Kansas driver's license office and must be signed by both parties and notarized.

2. OPINION

As you stated in your memorandum, section 7213(a)(1)(B) of Public Law 108-458 the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requires SSA to establish minimum standards to establish eligibility for original and replacement Social Security cards. One of the new requirements implemented requires the SSN card applicant to use their legal name and when changing their name, the applicant must present a name change document. See POMS RM 00203.200 and RM 00203.210. As you noted in your request, the State of Iowa and the State of Kansas continue to recognize common law marriage. However, proof of a common law marriage is not accompanied by any name change document. You requested advice regarding the documentation required to be presented by a number holder in order to change his/her name due to a common law marriage in the states of Iowa and Kansas.

Iowa

The three criteria necessary to find a common law marriage in Iowa are: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. In re Marriage of W~, 278 N.W.2d 505, 510 (Iowa 1979). The burden of proof is with the party asserting the existence of a common law marriage. Id. A claim of common law marriage is regarded with suspicion and is closely scrutinized. In re Marriage of G~, 242 N.W.2d 1, 1 (Iowa 1976). While the common law does not prevent the change of one's name, as a personal preference, a legal name change for state identity purposes, is only possible with (1) a court ordered name change; (2) a divorce/annulment decree; or (3) a certified marriage license/certificate. See Iowa Admin. Code § 601.5(3). In the event of a common law marriage, the only possibility would be item number (1). Thus, in order to change one's name for SSA purposes due to a common law marriage in Iowa, the number holder must present a court ordered name change document.

Kansas

The essential elements of a common law marriage in Kansas are: (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out of each other as husband and wife in public. In re Estate of A~, 993 P.2d 637, 647 (Kan. 1999). In Kansas, a name change due to a common law marriage for state identity purposes can be obtained by presentation of a “common law certificate.” The common law certificate can be obtained at the local driver's license office. The common law certificate must be signed by both parties and notarized. See Kansas Department of Revenue, Driver's License Information, http://www.ksrevenue.org/dmvproof.htms, in order to change one's name for SSA purposes due to a common law marriage in Kansas the number holder must present a State of Kansas driver's license or State of Kansas identity card reflecting the new name and the underlying notarized common law certificate.

We hope this is helpful to you.

Frank V. S~ III
Chief Counsel, Region VII
By__________
Ann K. R~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502720019
PR 02720.019 - Kansas - 11/23/2011
Batch run: 11/23/2011
Rev:11/23/2011