Legal issues of married women
who keep their own names

- by Alice Marie Beard

Confusion exists concerning the legal right of a legally married woman to use her own surname at all times.

Only one of the 50 states (Hawaii) has laws saying that, after a marriage ceremony recognized by the state, a woman must use her husband's last name as her last name on all legal documents. However, most woman routinely change their last names at the time of a legal marriage, and most do so thinking that it is a legal requirement.

According to an Indiana attorney willing to talk on the subject, "There's no statute that says a woman does or does not have to use her husband's surname. A 'legal name' is whatever name that person uses and is recognized by, so long as he or she is not attempting to defraud anyone."

The attorney pointed out that an individual may have more than one "legal" name, as in the case of performers and actors.

"Actually, it's probably more of a problem for a woman to change her name," the attorney said, "but people in this society feel a woman should change her name."

Despite the fact that no law says that a married woman must use her husband's surname, the custom is so strong that recently there have been court cases over the issue.

A case arose in St. Joseph County, IN, that was finally settled in the Indiana Supreme Court: Elizabeth Marie Howard married Denis J. Hauptly. When they first married, she began using his last name. She decided to revert to using her own surname only.

Howard filed a petition in the St. Joseph County Circuit Court Jan. 17, 1972, asking that her name be changed to Howard on all legal documents which had listed her as Elizabeth Hauptly since her marriage.

Joseph W. Nyikos, then the judge of the St. Joseph County Circuit Court, ruled against the woman. She appealed and lost in the Indiana Court of Appeals. [Petition of Hauptly, 294 N.E.2d 833 (1973).]

Howard finally won her appeal June 25, 1974, in the Indiana Supreme Court when the court ruled against the lower courts, thus establishing a legal precedent for that which had always been legal -- the right of a married woman to use her own name. The Court wrote, "A woman has a common law right to do business in a name other than her married name. In fact, there is no legal requirement that any person go through the courts to establish a legal change of name." [Petition of Hauptly, 312 N.E.2d 857 (IN 1974).]

When Howard appealed to the Indiana Supreme Court, in the state's case against her the attorney general's brief called Howard a "sick and confused woman, unhappy with her marriage." After one of the Indiana Supreme Court justices said that such comments in the brief were improper, the attorney general said he was only trying to inject humor into a dull brief.

Another case made its way to the U.S. Supreme Court, and in March 1972 the high Court affirmed the decision of a lower court which held that a state has the authority to require a wife to assume her husband's surname in marriage. The case, at the U.S. Supreme Court level, was a states' rights issue since laws governing marriages are a power of the state.

The case arose in Alabama when a married woman who had always used her own name was told her driver's license would have to be issued with her husband's last name as her last name. [Forbush v. Wallace, 405 U.S. 970 (1972).]

Although only Hawaii has laws saying a woman must use her husband's last name, according to Jane Dubcomb, state chair of the Indiana Women's Political Caucus, "There are a few states which require the first two names as they appear on a married woman's birth certificate and the last name which appears on her husband's birth certificate for purposes of a driver's license."

Alabama and Michigan are two of the states that make that requirement. Indiana has no such requirement.

The practice of a woman changing her name at the time of marriage is only a custom and is not a matter of law in almost all states in the United States. The custom is not world-wide, and it is not a custom dating from the beginnings of civilization.

Most respected sources believe that the modern, patrilineal, hereditary surname of western Europe and northern America stems from feudalism. During the Middle Ages, a noble family would identify the head of household by appending to his name the name of the family estate.

The estate name eventually became used by younger sons and came to be considered hereditary. The practice of surnames grew as the bourgeoisie did what the nobility did, and as the poor people mimicked both the nobility and the bourgeoisie.

The change to all people having surnames (and thus the practice of a woman giving up one surname for another at the time of marriage) was not complete in England until after the 16th century. It was not complete in the outlying parts of Wales, Scotland, and Ireland until after the 18th century.

Customs that differ from the western European/northern American custom of the wife taking her husband's last name and all of their offspring having his last name include the practice of some wealthy British families of combining the wife's surname and the husband's surname into a hyphenated form for a new family name.

A similar practice exists in Spanish-speaking countries where a person carries both parents' surnames. In some Mixtec communities (of the native central American cultures), a man's first name becomes the last name of his children.

In Iceland, a variation of the father's first name (rather than the family name) is used almost exclusively in combination with the person's first name. Even after marriage, a woman retains as a surname that variation of her father's first name. Thus, within a family, husband, wife, and children would all have different last names.

When a couple marry in Eastern European countries, for example in Czechoslovakia, it is not uncommon for each to retain his/her family name, or for either of the couple to accept the other's family name as his/her own.

Not all cultures have been patrilineal. Among the native North Americans, both the Iroquois and the Delaware were matrilineal, with a person gaining his/her name from the mother's clan.

The first-recorded U.S. woman to retain her name after legal marriage was Lucy Stone, who married in 1855. Other married women who have kept their own names include Margaret Mead, Amelia Earhart, Pearl Buck, Francis Perkins, and Folia LaFollette.