You asked whether, under state law, proof of marriage (a marriage license) alone would
be sufficient documentation for a married couple to adopt either party's surname,
a hyphenated version of their names, or a different name altogether. For the reasons
that follow, we believe that, in each of the six states comprising our region (Illinois,
Indiana, Ohio, Michigan, Minnesota, and Wisconsin), a married couple or either member
of the couple may take any last name of his or her choosing, so long as the person
is not taking that name for fraudulent reasons.
The state statutes of the states at issue contain no express language addressing a
married individual's right to change his or her name. However, each of the states
has adopted the common-law rule that anyone is free to change his or her name without
resort to the courts, so long as the individual is not changing the name for fraudulent
purposes. As such, we believe that either party to a legal marriage may change his
or her last name to the other party's last name, or that each party can change his
or her last name to an agreed-upon different last name, so long as the motive for
the change is free of fraud.
In Illinois, it appears that a married couple can take any last name of their choosing.
The Illinois Supreme Court has held: “At common law, and in the absence of statutory restriction, an individual may lawfully
change his name without resort to any legal proceedings, and for all purposes the
name thus assumed will constitute his legal name just as much as if he had borne it
from birth.” Reinken v. Reinken, 184 N.E. 639, 640 Ill. (1933). Furthermore, the Illinois statute that provides a
procedure by which a name change may be accomplished by court decree is “not exclusive but [is] merely permissive, and [it does] not abrogate 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
last name, so long as the individual is not doing so for fraudulent purposes.
In Indiana, it appears that a married couple can take any last name of their choosing.
Relying entirely on the Indiana Supreme Court's holding in Petition of Elizabeth Marie Hauptly, 312 N.E.2d 857 (1974), the Indiana appellate court held: “At common law and today, in the absence of a statute to the contrary, 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). 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; it merely furnishes an additional method of effecting
a name change.” Since Indiana has no statute to the contrary, a married individual may choose any
last name, so long as the individual is not doing so for fraudulent purposes.
In Michigan, it appears that a married couple can take any last name of their choosing.
The Michigan appellate court has held:
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. . . .In Michigan, as in most states, a statute authorizes
procedures by which a court can, upon petition, change the name of any person. Such
change-of-name statutes do not abrogate or supersede the common law. To the contrary,
they affirm the common law right and afford an additional method by which a name change
may be effected as a matter of public record. Piotrowski v. Piotrowski, 247 N.W.2d 354, 355 (1976). Thus, a married individual in Michigan may choose any
last name, so long as he/she is not doing so for fraudulent purposes.
In Minnesota, it appears that a married couple can take any last name of their choosing.
In Application of Dengler, 287 N.W.2d 637 (1979), Petitioner appealed from the district court's denial of his
application to change his last name under the Minnesota name-change statute to the
numeral 1069. The Supreme Court affirmed the district court's holding, reasoning that
“it was not the intention of the legislature in adopting Minn Stat. §§ 259.10, 11(1978)
to authorize a court order which changes to a numeral an alphabetical 'name'” Id. at 639.
The Court, however, adopted the rule that “at common law a person may change his name at will, without resort to legal proceedings,
by merely adopting another name, provided that this is done for an honest purpose
[and that] where this subject [is] regulated by statute. . . such legislation is merely
in aid of the common law and does not abrogate it.” Id. (citation omitted). As such, the Court held: “As we have indicated, the appellant is at liberty to enjoy his common law right to
the use of numerals as his name, as long as he is willing to endure the inconvenience
which is attendant on asserting that right.” Id. Therefore, a married individual in Minnesota may legally take any last name of their
choosing, so long as he/she is not doing so for fraudulent purposes; however, if the
married individual chooses numerals, that name could not be sanctioned by the state
of Minnesota via a court order.
In Ohio, it appears that a married couple can take any last name of their choosing.
In re Bicknell et al, 771 N.E. 2d 846 (2002), Petitioners, a cohabitating same-sex couple, sought to change
both of their last names to one that contained letters from both of their surnames.
Relying on 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,” the Ohio Supreme Court held: “It is clear that appellants have no criminal or fraudulent purpose for wanting to
change their names. They are not attempting to evade creditors or to create the appearance
of a state-sanctioned marriage. Accordingly, we hold that appellants' name change[s].
. . are reasonable and proper.” Id. at 849. Because a same-sex couple was permitted to adopt a last name combining
their two surnames, a married couple could do the same, as well as choose any other
name, so long as they were not doing so for fraudulent purposes.
In Wisconsin, it appears that a married couple can take any last name of their choosing.
In Kruzel v. Podell, 226 N.W 2d 458,462 (1975) the Supreme Court of Wisconsin held that: “in accordance with the common law of this state, as frequently explained by the Attorney
General, a change of name results from marriage only if, in accordance with common
law principles, the surname of a married woman's husband is habitually used by her.” In so holding, the Court explained that “[t]his is no more than the recognition of a common law rule that a person could change
his name if it was not done for the purpose of fraud.” Finally, The Court concluded that the statutes of Wisconsin “merely affirm, and do not abrogate, the common law.” Id. at 465. The Court continued: “[T]he common law should be permitted to operate unless evidence is put forward to
show that some fraud or deception is intended by a change of name. . . .” Id. Since a husband and wife can legally have different last names, and since an
individual (regardless of marital status) can change his or her name at will, we believe
that a married individual in Wisconsin can take any last name of their choosing so
long as the individual habitually uses it and did not choose it for purposes of fraud.
Thus we conclude that in all six states of this region an individual can change his
or her name to any name he or she so chooses, so long as it is not for a fraudulent
Gary A. S~
Acting Chief Counsel, Region V
Yusef A. D~
Assistant Regional Counsel