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