TN 9 (05-14)

PR 02720.029 Montana

A. PR 14-083 Name Change Based on Declaration of Marriage in Montana—REPLY

DATE: January 24, 2014

1. SYLLABUS

The Montana Declaration of Marriage document, prepared in accordance with the provisions of section 40-1-311 of the Montana State Code, validating an unsolemized (Common Law) marriage as a legal and valid marriage is acceptable evidence of a name change event.

2. OPINION

Question Presented

You asked whether the State of Montana recognizes a Declaration of Marriage as proof of a legal name change.

Summary Answer

Yes. The State of Montana recognizes a Declaration of Marriage as proof of a legal name change, provided the declaration substantially contains the following information:

  • the names, ages, and residences of the parties;

  • the fact of marriage;

  • the name of the father and maiden name of the mother of both parties and each individual’s address; and

  • a statement that both parties are legally competent to enter into the marriage contract.

The declaration must also be:

  • subscribed by the parties and attested by at least two witnesses;

  • acknowledged by the clerk of the district court in the county where the contract was executed; and

  • filed by the clerk of the district court in the county where the contract was executed.

For name change purposes, the state will only accept a certified copy of a Declaration of Marriage.

SSA may accept the declaration at issue as a name change document because it meets all of the above requirements. SSA may also accept the declaration as sufficient evidence of the number holder’s (NH’s) new name and identity. Therefore, the field office may process the NH’s application for a replacement SSN card that reflects a change of her last name.

Discussion

SSA Name Change Regulations and Policy

Social Security regulations provide that a number holder may request that SSA change his or her records, including his or her name. See 20 C.F.R. §§ 401.65, 422.110. The number holder must present sufficient evidence to justify a change in his or her records. See id. §§ 422.107, 422.110.

Program Operations Manual System (POMS) RM 10212.010 lists events that justify a name change, including marriage, divorce, and a court order for a name change. Under current policy, the agency generally requires that evidence submitted in support of the name change be U.S., State, Federal or court-issued name-change documents, including marriage certificates, divorce or annulment decrees, court-ordered name-changes, certificates of naturalization, and amended/corrected birth certificates. See POMS RM 10212.010.

A U.S. common law marriage is a name change event. See POMS RM 10212.010. SSA must determine whether the common law marriage document submitted by the applicant is acceptable evidence of a name change event for the state where the marriage was legalized. See POMS RM 10212.030. In addition to evidence of a name-change event, applicants must also present sufficient evidence of the new name and of identity to link the new name with the old name on the Numident. See POMS RM 10212.015(D).

Montana Common Law Marriage and Name Change Laws

Montana recognizes common law marriage. See Mont. Code Ann. § 40-1-403. However, “[t]he State of Montana has created another form of marriage which can be used to document a common law marriage. A couple who have joined in a common law marriage may subsequently make a Declaration of Marriage without Solemnization, MCA 40-1-311[.]” http://courts.mt.gov/library/topic/common_law_marriage.mcpx. [1]

A declaration of marriage must contain substantially the following:

  1. a. 

    the names, ages, and residences of the parties;

  2. b. 

    the fact of marriage;

  3. c. 

    the name of father and maiden name of mother of both parties and address of each;

  4. d. 

    a statement that both parties are legally competent to enter into the marriage contract.

Mont. Code Ann. § 40-1-311(2).

Prior to executing the declaration, persons wishing to consummate a marriage by written declaration must secure a medical certificate that states the female applicant has undergone a blood test for rubella immunity or a waiver of the required test. The medical certificate or waiver must be filed with the declaration by the clerk of the district court in the county where the parties executed the declaration. See id. §§ 40-1-311(1), 40-1-203.

The declaration must be subscribed (signed) by each party and attested by at least two witnesses. The clerk of the district court of the county where the district court was executed must acknowledge in writing that the parties executed the declaration before him/her. See id. §§ 40-1-311(2), (3).

Montana permits an individual to change his or her name on a state-issued identification document, if the individual applies for a name change and verifies the change by presenting a certified copy of an acceptable name change document. A certified copy of a Declaration of Marriage is not listed in Montana’s administrative rules as an acceptable name change document. See Mont. Admin. R. 23.3.128(1). [2] However, Montana’s Attorney General has clarified on the state’s website that a certified copy of a Declaration of Marriage filed with the district court where the declaration was made is sufficient proof of documentation of a name change for purposes of an individual changing his/her name on a driver license. See https://doj.mt.gov/driving/required-docs/.

Therefore, we conclude that the State of Montana will accept a copy of a Declaration of Marriage as proof of a legal name change, provided it substantially contains the following information:

  • the names, ages, and residences of the parties;

  • the fact of marriage;

  • the name of the father and maiden name of the mother of both parties and the address of each; and

  • a statement that both parties are legally competent to enter into the marriage contract.

The declaration must also be:

  • subscribed by the parties and attested by at least two witnesses; and

  • acknowledged by the clerk of the district court in the county where the contract was executed; and

  • filed by the clerk of the district court in the county where the contract was executed with the required medical certificate or waiver acquired by the parties prior to entering into the declaration.

For name change purposes, the state will only accept a certified copy of a Declaration of Marriage.

The Declaration of Marriage Substantially Complies with Montana Law

The number holder (NH) Kimberly B~ applied for a replacement SSN card that reflects a change of her name to Kimberly L. S~. The Declaration of Marriage that she submitted in support of her application reflects:

  • the seal of the Supreme Court of Montana—proof the copy is certified, that the declaration is filed with the Clerk of District Court, Yellowstone County ;

  • the names of the parties—Kimberly B~ and Christopher —their residences, and ages;

  • a statement by the parties declaring their marriage to one another on October 15, 2013;

  • name of the father and maiden name of the mother of both parties and their respective residences;

  • a statement that both parties are legally competent to enter into the marriage contract; and

  • the signature of each party and two witnesses.

Thus, the declaration at issue substantially complies with Montana law [3] The NH also submitted a certified copy of a Formal Acknowledgment and Attestation, which the Deputy Clerk, on behalf of the Clerk of District Court, Yellowstone County, signed acknowledging that the parties executed the declaration in front of her. Therefore, we conclude that the State of Montana would accept the declaration presented by the NH as evidence to support a change of her last name from B~ to S~.

The Declaration Is Also Sufficient Evidence to Process a Name Change on the SSN

“Evidence of the name change event, the new name, and identity is required to process a name change based on a marriage . . . .” POMS RM 10212.055. As discussed above, the certified copy of the Declaration of Marriage submitted by the NH is acceptable evidence of a name change under Montana law.

SSA may accept a name change document based on marriage as evidence of the new name to be shown on the card, if the new name can be derived from the document (e.g., bride takes the groom’s last name). See POMS RM 10212.055(B). Here, the NH’s new last name— S~ — can be derived from the Declaration of Marriage, which reflects this as the groom’s last name.

The NH must also establish her identity before SSA may process her name change request. Here the Declaration of Marriage, the name change document, can serve as an acceptable identity document for a name change: the name change event occurred within the past two years, and the document has the NH’s prior name and biographical information such as age, date of birth, or parents’ names, which matches the data on the latest Numident record. POMS RM 10212.015(D). [4]

Conclusion

The State of Montana will accept a certified copy of a Declaration of Marriage meets all the state’s requirements as evidence of a name change event. The declaration at issue complies with state law, so SSA may accept it as a name change document. The declaration is also evidence of the NH’s new name and sufficient proof of identity. Therefore, SSA may process the number holder’s (NH’s) application for a replacement SSN card that reflects a change of her last name as requested.

John Jay Lee
Regional Chief Counsel, Region VIII

By _________________
Yvette G. Keesee
Assistant Regional Counsel


Footnotes:

[1]

The “Declaration of Marriage without Solemnization,” at issue here should not be confused with other documents having a similar title. We have previously advised that a notarized Affidavit of Common Law Marriage does not establish the existence of a common law marriage in Montana, and that the state will not accept it as evidence of a name change. See Memorandum, from Reg. Chief Counsel, Denver, to Ass’t Reg. Comm-MOS, Denver, Montana Common Law Marriage as a Basis for Legal Name Change (Sept. 21, 2006).

[2]

The documents listed are:

(a) a certified copy of the applicant's marriage certificate from the issuing government jurisdiction;

(b) a certified copy of a decree or judgment granting a name change from a court of competent jurisdiction;

(c) a certified copy of a divorce decree or dissolution of marriage granted the applicant that specifies the change of name required; or

(d) a certified copy of a US department of justice, immigration and naturalization service, certificate of naturalization (forms N-550, N-570) issued to the applicant. Mont. Admin. R. 23.3.128(1).

[3]

While the declaration reflects only the residence of each party’s parents, and not their street addresses, we conclude that this information sufficiently complies with the statute. In addition, although we did not receive a copy of the medical certificate or waiver, we presume the clerk would not have acknowledged and filed the declaration unless the parties had properly acquired and submitted one of these documents.

[4]

If the Declaration of Marriage did not meet both criteria, the NH’s state identification card in her prior name would be sufficient evidence of identity. See POMS RM 10212.015(D).


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502720029
PR 02720.029 - Montana - 05/14/2014
Batch run: 04/02/2018
Rev:05/14/2014