Continued Limitations On Marital Surname Choice

By Holly Duke, Associate Editor

When we got engaged, my husband and I had a conversation familiar to many getting married today: what to do about our surnames after marriage. We discussed keeping our birth surnames, jointly hyphenating, combining our birth surnames into a new name that was entirely our own, or the traditional option of him retaining his birth surname and me changing mine to his. To me, this was a large decision, and one that I felt had an impact on me as a feminist and woman. Ultimately, it took me two years to decide what I wanted to do, and I decided to change my surname to his. It was important to me that we share a name, and after researching the blended surname option, I found that it would be difficult to do. When I did decide to change my surname, the process was an easy one. But for couples that choose a non-traditional name change option, the process if often not as simple.

For hundreds of years, it was assumed that a woman would take her husband’s surname at marriage. This practice became entrenched in the European patriarchal political and social system and soon became part of the law.[1] Today it is increasingly less common for women to take their husbands surname at marriage. In a survey completed by Google and reported in the New York Times, roughly 20% of women married in the last decade have kept their maiden names.[2] In the alternative, some couples choose to blend their surnames through forming a new surname, and some choose to hyphenate their married and birth surnames. As non-traditional surname options at marriage are becoming increasingly popular, recent legal research suggests that many states do not accommodate men and women, especially men, who choose non-traditional surname options.[3]

Surnames first became part of the legal record following the Norman Conquest of England and were originally used to distinguish different individuals as the English tradition of referring to individuals by one name became cumbersome.[4]  Initially, it was not uncommon for women to hold surnames different from their husbands that reflected their own identities.[5] This practice became less common in the eleventh century following the introduction of the law of coverture.[6]  The law of coverture placed women under the legal authority of their husbands, with no legal identity of their own.[7]  It became less common for women to own and inherit property, and the use of only the male surname became extremely prevalent.[8]  English law, however, did not formally require a particular surname convention.[9]

The United State adopted this legal framework.[10] Despite the lack of a legal surname requirement on marriage, when women attempted to assert their right under the common law to choose their own surname at marriage – whether through hyphenation or retention of their birth surname – courts created legal precedent to encourage women to choose their husband’s surname.[11]

The practice of a woman taking a man’s surname at marriage has been attacked by feminists as a gender bias that perpetuates gender inequality.[12]  Women in the 1960s and 1970s began to challenge the social norms around name change and to fight for the right to choose their surname at marriage.[13] This issue became a central cause of second wave feminism.[14]  It became increasingly important to feminists to keep their surnames or hyphenate their birth surnames with their husband’s surnames to emphasize the importance of a woman’s identity apart from her husband.[15] In the 1970s, legislation was introduced in several states which allowed  men and women to choose their surname at marriage. While this legislation was largely rejected, feminists did win the choice for a woman to keep her maiden name, take her husband’s surname or hyphenate at marriage.[16]  Today, in every state but Louisiana, women have the ability to change their surname easily at the time of marriage.[17]

According to a recent Google survey reported in the New York Times, the number of women who kept their maiden names declined since the conclusion of second wave feminism but is recently on the rise again.[18]  In the 1970s, about 17% of women married for the first time kept their maiden name.[19]  In the 1980s, about 14% of women kept their maiden name,[20] and in the 1990s, about 18% of women kept their maiden name.[21] A woman’s choice in her own name remains important for feminists as it signifies a woman’s ability to retain her own identity in marriage.[22]

While more and more women are choosing to retain their birth surname, there is little research on how many men choose to take their wives’ name, as the belief is that this is extremely rare.  There is little research to confirm that is the case.[23]  Recent studies support the proposition that many young men and women in the United States plan to conform to women adopting men’s last name at marriage.[24]  Studies also show that men who change or hyphenate their names are viewed by their peers as less masculine and more feminine than men who do not change their surname at marriage.[25]  This research shows that the social convention that women take their husband’s surname at marriage is still a strong influence in the United States, but resistance to this social norm seems to be on the rise.

If a man and woman do choose to change or blend their surnames, state laws do not always make it easy to do so. There has been a surge in scholarship urging states to change their laws limiting surname choice at marriage, as many states do not currently make this easy to do.[26] Only nine states allow men to change their surnames at marriage – New York, Hawaii, Georgia, Massachusetts, Kansas, New Hampshire, California, North Dakota, and Louisiana.[27] Only four states clearly allow for blended surnames –  California, New York, Kansas, and North Dakota.[28] Three states allow for the adoption of any surname on marriage regardless of gender – Iowa, Massachusetts, and Minnesota.[29] In other states, choice of surname is limited, and a formal, statutory name change is required.[30]

States that limit marital surname options have been challenged on the basis of the Fourteenth Amendment’s Equal Protection Clause.[31] States that do not allow men to change their name at marriage require men to go through a formal statutory name-change proceeding.[32] By not providing men the same options to change their surname at marriage, scholars argue these laws discriminate against men.[33]  With non-traditional surname choices on the rise once again in the United States, states will need to consider new legislation to provide more choices for couples who choose a non-traditional option, as many states currently are not equipped to do so.

[1] See Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1, 2 (2018).

[2] Claire Cain Miller and Derek Willis, Maiden Names, On the Rise Again, N.Y. Times, June 27, 2015, https://www.nytimes.com/2015/06/28/upshot/maiden-names-on-the-rise-again.html.

[3] See Hannah Haksgaard , Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 346 (2019)      (discussing the need for the option of blended surnames for both parties, regardless of gender).

[4] Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1, 4 (2018).

[5] Id. at 7.

[6] Id. at 8.

[7] Id.

[8] Id.

[9] Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1 , 9 (2018).

[10] Id.

[11] See Id. at 10(arguing “[d]espite the common law standard of flexibility and personal choice in surname usage, the practice of a wife surrendering her name for her husband’s was as close to a legal requirement during the modern period as it could be without having any actual legal support as such”).

[12] See Rachel R. Stoiko and JoNell Strough, ‘Choosing’ the Patriarchal Norm: Emerging Adult Marital Last Name Change Attitudes, Plans and Rationales, 34 Gender Issues 295, 297 (2017) (arguing that the “current heterosexual norm in the United States of a woman (and their future children) taking the last name of her husband after marriage is a form of linguistic gender bias that both reflects and perpetuates societal inequalities”).

[13] Id. at 297.

[14] See Id.

[15] Rachel R. Stoiko and JoNell Strough, ‘Choosing’ the Patriarchal Norm: Emerging Adult Marital Last Name Change Attitudes, Plans and Rationales, 34 Gender Issues 295, 295-296 (2017).

[16]Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev 307, 313 (2019).

[17] Deborah Anthony, Eradicating Women’s Surnames: Law, Tradition, and the Politics of Memory, 37 Colum. J. Gender & L. 1, 21 (2018).

[18] Claire Cain Miller and Derek Willis, Maiden Names, On the Rise Again, N.Y. Times, June 27, 2015, https://www.nytimes.com/2015/06/28/upshot/maiden-names-on-the-rise-again.html.

[19] Id.

[20] Id.

[21] Id.

[22] See Masumi Arichi, Is It Radical? Women’s Right to Keep Their Own Surnames After Marriage, 22 Women’s Stud. Int’l. F. 411, 411 (1999).

[23] See Catherine Pearson, Why Men Don’t Take Their Wives’ Names, According to Some Who Did, HuffPost, December 6, 2017, https://www.huffpost.com/entry/men-still-dont-take-their-wives-names-but-why-not_n_7587388 (quoting Laurie Scheuble, a senior lecturer at Penn State who states that it may be so rare that “any survey would have trouble picking it up”).

[24] See Rachel R. Stoiko and JoNell Strough, ‘Choosing’ the Patriarchal Norm: Emerging Adult Marital Last Name Change Attitudes, Plans and Rationales, 34 Gender Issues 295, 307 (2017) for a stufy of US college students in which roughly 85% of men’s and 90% of women’s plans conformed to the patriarchal norm of women adopting men’s last names upon marriage.

[25] Emily Fitzgibbons Shafer, Hillary Rodham Versus Hillary Clinton: Consequences of Surname Choice in Marriage  34 Gender Issues 316, 320 (2017).

[26] See Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 317 (2019).

[27] Id. at 319.

[28] Id. at 317.

[29] Id.

[30] See Michael Rosensaft, Comment, The Right of Men to Change Their Names Upon Marriage, 5 U. Pa. J. Const. L. 186, 188 (2002).

[31] Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 314 (2019).

[32] See Michael Rosensaft, Comment, The Right of Men to Change Their Names Upon Marriage, 5 U. Pa. J. Const. L. 186, 188 (2002). See also Michael Mahoney Frandina, Note, A Man’s Right to Choose His Surname in Marriage: A Proposal, 16 Duke J. Gender L. & Pol’y 155, 162 (2009).

[33] Hannah Haksgaard, Blending Surnames at Marriage, 30 Stan. L. & Pol’y Rev. 307, 314 (2019).