His, hers, or theirs?

Back about a hundred years ago… or in March… the subject here at The Legal Genealogist was name changes by immigrant ancestors. In that discussion of What’s in a name?, we came to understand that the immigration process made a name change so easy, that many immigrants did so in their naturalization proceedings.¹

That led reader John Tracy Cunningham to wonder, since changing one’s name at naturalization was easy, “How about at marriage? May the bride take any name? How about the groom?”

That’s a question that is positively irresistible. Because, after all, it’s got that most wonderful and annoying of legal answers.

You know what’s coming, right?

Ready?

Wait for it…

It depends.

First and foremost, understand that in common law jurisdictions, like most of the United States, laws with respect to married names are the exception, not the rule. For the most part, what name follows a person into marriage is a matter of custom, not law.

In early times, surnames tended to be geographic, descriptive or occupational and, since most women didn’t work outside the home and they were considered to be one with their husbands, it was the husband’s name that was usually used. But if she happened to be from a prominent family, or there was an inheritance at stake, there was nothing stopping the couple and their children from using her family name, not his.²

Think about that when a DNA test tells you that you need to figure out where a non-paternity event occurred in a male line.

Now of course the informality of surnames didn’t mean the courts were all that welcoming of the notion that a mere woman could choose to keep her maiden name on marriage. There are a bunch of cases well into the 20th century where judges did their best to make it seem that it was law, and not custom, that conferred the husband’s name on the wife when they married:

     • In 1856, the South Carolina Court of Errors declared that “in general, wives have surnames by courtesy only, adopted from their husbands, and it is inconvenient that they should have appellations different from husbands.”³

     • In 1881, the New York Court of Errors and Appeals declared: “For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname. That becomes her legal name, and she ceases to be known by her maiden name.”⁴

     • In 1890, the Texas Supreme Court declared that “On the marriage of Mary E. Robison the law conferred on her the surname of her husband.”⁵

     • In 1926, the Massachusetts Supreme Judicial Court held that when a married woman registered a car under her maiden name, “she did so in a name that was not hers; … As matter of law after her marriage in 1921 her legal name was Alice W. Bacon.”⁶

     • In 1934, a federal court in New York refused to issue a naturalization certificate in a married woman’s maiden name, declaring that “a woman, at her marriage, takes the surname of her husband. … If she wishes naturalization, the certificate must issue in the surname of her husband.”⁷

     • In 1945, an appeals court in Illinois held that “upon marriage and by the fact of marriage alone a woman changes her name so that her maiden name is lost and her new name consists of her own given name and her husband’s surname.”⁸

By 1961, the worm was turning. An Ohio appeals court was faced with a challenge to the candidacy of a married women who retained her maiden name. It rejected the challenge, holding: “It is only by custom, in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father. The state of Ohio follows this custom but there exists no law compelling it.”⁹

And in 1972, the Maryland Supreme Court agreed: “there is no statutory requirement … that a married woman adopt her husband’s surname. … (T)he mere fact of the marriage does not, as a matter of law, operate to establish the custom and tradition of the majority as a rule of law binding upon all.”¹⁰

Even the last state to have a specific law on the subject — Hawaii — dropped its requirement that a woman take her husband’s name as a family name in a statutory amendment in 1975.¹¹

So why do I say it depends?

Three reasons.

First, the way the law stands in most states today, the bride who marries gets two choices and two choices only: keep her birth name or take her husband’s name. If she opts to take his name, all she needs is her marriage license and she’ll be able to change her Social Security card, her driver’s license and anything else she needs.

Second, the way the law stands in most states today, the husband doesn’t get the same choice to keep his name or take his wife’s name. If he wants to change his name to hers, he needs a court order to get all the legal evidence of identity changed over to his new name.¹²

There are eight states that permit the couple to choose his name, her name, or in some cases their name — usually limited to a combination of their names, with or without hyphens. Those eight states are California,¹³ Georgia,¹⁴ Hawaii,¹⁵ Iowa,¹⁶, Louisiana,¹⁷ Massachusetts,¹⁸ New York,¹⁹ and North Dakota.²⁰

Outside of those states, and even there if the particular name isn’t a type approved in the law, a court order is required if you want to get all the legal documents proving your identity changed over into a new name. If you just want to use a name without having it as your legal name, that’s still permitted under the common law just about anywhere, as long as you’re not trying to defraud anybody.²¹

Oh… and that third reason? Um… er… uh… it seems that American law doesn’t govern everywhere. In France, for example, it’s been the law since 23 August 1794 that no person can legally use any other name than his or her own birth name.²² In Belgium, the same is true: marriage can’t change the legal name.²³ In jurisdictions with those sorts of laws, the only way a name can be legally changed is by an order of a court or other competent official.

Considering the number of countries and cultures around the world — some where it’s only the woman’s name that counts²⁴ — the only way realistically to answer this sort of question is… it depends.

 
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Image adapted from Open Clip Art Library.