You requested a legal opinion regarding whether a marriage certificate was acceptable
evidence of name change when a man wishes to change his surname (last name) to that
of his wife after marriage. You noted that you were unable to determine if marriage
itself was an acceptable name change event in Missouri, Kansas, and Nebraska. You
further noted that in Iowa, when the marriage license application is made, the individuals
declare what surname they intend to use after marriage. Accordingly, for marriages
in Iowa, you stated that SSA has used the marriage certificate as valid proof of identify
for changing numident records. We believe that it is proper to follow the procedures
in POMS RM 00203.210 in each state within Region VII with regard to change of name because of marriage.
Analysis
An individual who wishes to change the name or other personal identifying information
previously submitted in connection with an application for a social security number
card may do so by completing and signing an SSA Form SS-5. See 20 C.F.R. § 422.110 (2002). When a request for a name change is made, the individual
receives a new social security number card with his or her new name bearing the same
number that was previously assigned. See id. Evidence of identify must be submitted, and may consist of a driver's license, identify
card, or marriage record, along with other documents not relevant here. See 20 C.F.R. § 422.107(c) (2002).
The regulatory requirements have been further clarified in the Program Operations
Manual System (POMS). A marriage certificate is acceptable evidence for a change of
name. See POMS RM 00203.210, "Changing Numident Data." Furthermore, if in the state where the marriage takes
place, the state recognizes the marriage as an acceptable name-changing event for
the husband, SSA will change the surname of the husband. See POMS RM 00203.210, "Changing Numident Data."
As you noted in your request, in Iowa when individuals are married, they list on the
license the surname they intend to use after marriage. For your future reference,
we note that this is codified in section 595.5 of the Iowa Code. "A party may indicate
on the application for a marriage license the adoption of a name change" and "these
names shall become the legal names of the parties to the marriage." Iowa Code Ann.
§ 595.5 (2001). Therefore, in Iowa it is correct to amend a husband's name in SSA
records, upon his proper request, to reflect the name that is selected on the marriage
license.
Concerning the other states in our region, Kansas, Nebraska, and Missouri, these states
all follow the common law, under which there is no prohibition which would keep a
husband from adopting his wife's surname. In these states, there are no statutes that
govern name changes at the time of marriage. Under the common law, a person has the
right to assume any name he or she lawfully chooses. See 57 Am. Jur. 2d Name § 16 (2002). This is possible without any legal proceedings, merely by simple usage
or habit, absent fraud, misrepresentation, [1] or an interference with the rights of others. See id. There is nothing in the common law that would prohibit even a foolish choice of name.
See id. At the time of marriage, the right of a woman to continue to use her maiden name is
established, and the common-law rule that a person may use any name (absent fraud
or misrepresentation) is given as the basis for allowing a woman to adopt her maiden
name or change her name. See 57 Am. Jur. 2d Name § 9 (2002). Married women and men are free to adopt a name change at will, provided
it was done for an honest purpose, without resorting to legal proceedings. See 57 Am. Jur. 2d Name § 40. Likewise, an individual has the right to resume the use
of their former name, absent fraudulent purposes, at the time of the dissolution of
marriage. See 57 Am. Jur. 2d Name § 41.
Missouri adopted the common laws of England which are of a general nature and which
have not been invalidated, expressly or impliedly, by the U.S. or Missouri Constitution
or the Missouri Statutes. See Matter of N~, 527 S.W. 2d 402 (Mo. App. 1975); Mo. Rev. Stat. § 1.010 (2002). Historically, the
husband and wife customarily adopted the name of the spouse with the most property
and since men typically held more property than women, most women took the husband's
name. See Matter of N~, 527 S.W. 2d at 403. This custom never became law, and the English common law view
was that a woman's surname was not bound to her marital status and arose only through
her use of a name. See id. at 403-04. Moreover, the right to adopt another name was not limited to males or
females. See id. at 404. "The concept that the husband and wife are one, the 'one' being the husband,
has been abandoned." Id. "Insistence that a married couple use one name, the husband's, is equally outmoded."
Id.
Driver's licenses are the primary State identification document. In Missouri, a marriage
certificate is acceptable proof of a change of name for Missouri Driver's License
and Motor Vehicle registration purposes. See Missouri Department of Revenue - How Do I, available at http://www.dor.state.mo.us/howdoi/married.htm (viewed 4/24/03). There is nothing in Missouri law or custom to prohibit a husband
from adopting his wife's surname at the time of marriage.
In Kansas, the common law has also been adopted in a similar manner as in Missouri.
See Kan. Stat. Ann. § 77-109 (2002). Courts in Kansas have long held that "it cannot
successfully be denied that a person has a perfect legal right to call himself by
any name he chooses, and so long as such name identifies him by reason of his being
thus known in the community in which he resides, he would have a perfect right to
sue and be sued by such name." Clark v. Clark, 19 Kan. 522 (1878). An individual may adopt any name different from his without
fraudulent intent. See Sanders v. Sitton, 292 P. 2d 1099 (Kan. 1956). A name change can be accomplished without any sanction
from the court, however, the statutory name change provisions are intended as aids
and affirmations of the common law rule, and not as an abrogation or substitution
for the informal procedure. See Matter of M~, 706 P.2d 480 (Kan. App. 1985). In Kansas, a certified marriage certificate is an
acceptable document to change the surname on an individual's driver's license. See Kansas Department of Revenue, available at http://www.KSRevenue.org/dmvproof.htmwed 4/24/03). There is nothing in Kansas law or custom to prohibit a husband from adopting
his wife's surname at the time of marriage.
Nebraska has likewise adopted the common law of England, to the extent that it is
not inconsistent with the Constitution or other laws of the state. See Neb. Rev. St. § 49-101 (2002). "In general, in the absence of statutory prohibition,
a person, without abandoning his real name, may adopt or assume any name, wholly or
partly different from his name, by which he may become known, and by which he may
transact business, execute contracts, and carry on his affairs, unless he does so
in order to defraud others, or he is inhibited by judicial adjudication, since it
is the identity of the individual that is regarded, and not the name which he may
bear or assume." Fidelity & Deposit Co. of Md. v. Bodenstedt, 104 N.W.2d 292 (Neb. 1960) (quoting 65 C.J.S. Names § 9, p. 9.). In Nebraska, change
of name statutes do not supersede the common law, but affirm that right and afford
an additional opportunity to change names. See Simmons v. O'Brien, 272 N.W.2d 273 (Neb. 1978). In Nebraska, a certified marriage license is satisfactory
to change the name on an individual's driver's license. See Nebraska Department of Motor Vehicles - Frequently Asked Questions, available at http://www.dmv.state.ne.us/dvr/faqwed 4/24/03). There is nothing in Nebraska law or custom to prohibit a husband from adopting
his wife's surname at the time of marriage.
Telephone calls to Driver's License offices and County Treasurers in the States of
Kansas, Missouri, and Nebraska, revealed that no office had any difficulty with changing
the records of a husband's surname to his wife's surname upon presentation of a marriage
certificate. It did not appear that this was an uncommon request.
We believe that it is proper to follow the procedures in POMS RM 00203.210 in each state within Region VII with regard to change of name because of marriage.
There is no law in Missouri, Kansas, or Nebraska that prohibits a husband from adopting
his wife's surname as his own at the time of marriage. Absent suspicions of fraud
or misrepresentation, a recent marriage certificate is acceptable evidence for a name
change in these states. In Iowa, the marriage license must list the name that the
individual intends to use.
Please note that this opinion should not be considered precedential for other situations
in which an individual wishes to change his or her name.
Frank V. S~III
Chief Counsel, Region VII
By__________
Bert W. C~
Assistant Regional Counsel