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 10212.025. See 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