April 15, 1977

The Honorable George S. Mickelson 
State Representative 
Post Office Box 248 
Brookings, South Dakota 57006

Official Opinion No. 77-31

Procedure for change of name

Dear Mr. Mickelson:

You have requested an official opinion based on the following factual situation:

FACTS: 

A number of women have made the decision to change their surnames.  Some are divorcees and wish to use their maiden names. Others wish to hyphenate their last names or choose another surname of special significance to them. Legal opinions seem to vary as to whether a change of surname can be accomplished without legal proceedings, or if a change of name proceeding pursuant to SDCL 21-37 or a divorce decree restoring a maiden name is necessary.

Based on the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  Where a person has been known by one surname, can she or he change it without formal court proceedings, so long as there are no fraudulent purposes and the new name is used consistently? 
    
2.  Upon marriage, is a woman compelled to abandon her surname and assume the surname of her husband? 
    
3.  Can a woman legally use her maiden name and her husband's name separated by a hyphen as her last name? 
    
4.  Can a state agency, such as a university, motor vehicle department, or voter registrar, refuse to accept a change of surname if identification is presented, even though it has not been decreed by a South Dakota court?

The history of names and the legal purposes which they serve are discussed at length in 1967-68 AGR 32.  The gist of the discussion is the fact that a person has the right to assume any name he chooses as long as such name is used consistently and nonfraudulently.  In the eyes of the law a name is a means of identification for purposes of keeping records required by state law.  Your fourth question enumerates some of the areas of state regulation which require accurate records both for the protection of the public and the individual.

Your questions, however, relate to the procedural aspects of acquiring and changing one's name.  The great majority of court decisions have held that one has a common law right to change his name without court proceedings.  The name change becomes a reality at such time as one becomes commonly and generally known by an assumed name.  This implies that a person has continuously and consistently used such name so as to acquire acceptance and repute thereby. The South Dakota Supreme Court in Ogle v. Circuit Court, Tenth Judicial Circuit, 227 N.W.2d 621, concurred in this position by stating that statutory name change proceedings are supplemental to the common law rights, these rights generally conditioned only on the absence of fraudulent purpose.  There are also indications in statute of the Legislature's acknowledgment of the common law procedure.  For example, SDCL 32-12-3 provides that an applicant for a driver's license “shall state the full legal name or any other name taken for lawful purposes.”

In practice, however, the determination by an official as to whether an assumed name is the commonly accepted name may be troublesome.  Obviously, each determination must be based on the particular facts and supportive documents. Nevertheless, in many instances it would be inexpedient if not impossible from a time standpoint to investigate the life history of a person wishing to use a name different from that on his birth certificate.  The burden of proof must fall on the applicant, but even then the public official is without definitive legal standards or criteria by which to make a determination.

In my opinion the answers to your specific questions are:

IN RE QUESTION NO. 1:

The answer to this question is yes.  The South Dakota Supreme Court has recognized the common law right to nonfraudulently assume a name which, upon common acceptance in the community, becomes his name.

IN RE QUESTIONS NO. 2 and 3:

I find nothing in statute which requires a wife to assume the surname of her husband.  SDCL 25-1-34 only requires, among other things, that the certificate of marriage specify the names and places of residence of the parties.  The answer to Question No. 2 is no and to No. 3 is yes.

IN RE QUESTION NO. 4:

In my opinion the answer to this question is yes.  Assuming the identification presented to the public officer or employee is suspect or not convincing, said officer or employee must use his judgment and discretion in deciding whether to accept or reject the assumed name.  I can think of numerous identification devices, such as retail credit cards, which are quite easily obtainable under false identity and for fraudulent reasons.  There would certainly be justification for requiring additional and more persuasive verification of identity.  In some cases, nothing short of a court order may be deemed acceptable verification.  The public officials charged with collecting information of the nature referenced in your question are also charged with the duty to collect accurate information since the same usually is incorporated into the state system of public records (i.e. vital statistics, etc.)

I realize that I have not offered any guidelines for public officials.  If uniform or more stringent standards for change of name are necessary, the Legislature is the proper body to address the issue.

Respectfully submitted,

William J. Jankow
Attorney General

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