Request By:
Ms. Carrol Smith
Executive Director
Kentucky Commission on Women
212 Washington Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is as follows:
"Does a woman have to take the name of the husband in order to get a valid Kentucky driver's license? If the same woman goes to court and has her name legally changed to that of her maiden name and then applies for a Kentucky driver's license, is that driver's license in the new name (her maiden surname) valid?"
We concluded generally in OAG 74-902, copy enclosed, that: (1) There is no statute or applicable case decision of the Kentucky appellate court compelling the wife's taking the husband's surname; (2) The general common law that anyone may change his or her name, except where there is an intent to defraud, has not been abrogated in Kentucky. We did not deal specifically with the driver's license problem in that opinion, since the issue was in the federal courts. Of course, KRS 403.230(2) [restoration of maiden name] governs in a divorce action. The statute is restrictive only as relates to divorce cases, and there is nothing in the statute which transforms a recognized social custom [a married woman's taking her husband's surname] into a rule of law.
In OAG 74-902, we were of the opinion that the name change court procedure of KRS 401.010 is a permissive remedy, but not an exclusive one.
KRS 186.412(1), in dealing with the application for a driver's license, merely provides that " "The application shall contain the full name . . . of the applicant . . ." (Emphasis added). The statute says nothing about "legal" name or "husband's surname" as such. It merely requires the full name of the applicant in order that identity of person can be promoted.
Notwithstanding the lack of explicit or implicit treatment of the husband's surname for the wife, the Director of the Division of Driver Licensing, Department of Transportation of Kentucky, has issued oral instructions which require that all operator's licenses issued to married women be in the surname of their husbands unless a court order granting a name change is presented to the circuit clerk at the time of the application for, or renewal of, the license. Such oral instructions were undoubtedly based upon the director's understanding of the common law and statutes in Kentucky. Of course that understanding breaks down simply because there is no statute nor decision of the Kentucky appellate courts requiring that a married woman must, as a matter of common law, take her husband's surname.
The attorney for the Department of Transportation, in Whitlow v. Hodges, before the Supreme Court of the United States, contended that Kentucky, like Alabama, had adopted the common law rule that a married woman must take her husband's surname. He had in mind
Forbush v. Wallace, 341 F.Supp. 217 (M.D. Ala., N.D.1971). However, Forbush was of no help to that attorney, since the court wrote in Forbush at p. 221 that "Alabama has adopted the common law rule that upon marriage the wife by operation of law takes the husband's surname.
Robert v. Grayson, 233 Ala. 658, 660, 173 So. 38 (1937);
Bentley v. State, 37 Ala. App. 463, 465, 70 So. 2d 430 (1954)." (Emphasis added). The point is that while the Alabama appellate court has declared this common law rule [married woman must take husband's surname] , the Kentucky appellate courts have not so ruled. Notwithstanding the above facts, the late District Judge Swinford dismissed the complaint in Whitlow v. Hodges, relying wholly upon Forbush v. Wallace, above. Upon appeal to the United States Court of Appeals, in the Whitlow case, that court remanded to the Eastern District Court to permit that court to make an inquiry into whether Kentucky law allows a married woman to retain her maiden name as her legal name, and that if the Kentucky law was like that of Alabama's, that would be dispositive of the issue, and a three-judge court would not be required.
Upon remand of Whitlow v. Hodges, Judge Moynahan reached the conclusion that under the common law of Kentucky a woman upon marriage abandons her maiden name and assumes her husband's surname. The court cited
Palmer v. Turner, 241 Ky. 322, 43 S.W.2d 1017 (1931). However, that case does not meet head on the question of whether the common law compels a married woman to take her husband's name. The issue there was whether the estate of the deceased wife as between her heirs and husband was required to pay her funeral expenses. The court did speak of the unity theory of marriage under the common law. The court wrote that the wife in marriage surrendered her property to the husband, and she lost her independence and identity in law. Thus the District Court felt that Forbush v. Wallace applied.
The Sixth Circuit Court of Appeals, in Whitlow v. Hodges, 539 F.2d 582 (1976), held in effect that, while the common law question is better left to the Kentucky courts, even if Kentucky law otherwise does not require a married woman to change her surname to that of her husband, a state agency may constitutionally impose such a requirement on a married woman for the purpose of issuing a driver's license, although the woman is known by her own surname for all other purposes. The court wrote that it found Forbush on all fours with the instant case and that the "convenience" rationale of Forbush sufficed to uphold the Division of Driver Licensing's unwritten requirement that a married woman apply for and receive a driver's license in the surname of her husband, unless and until she has obtained a court-ordered name change restoring her own name. The court noted that KRS 401.010 affords a simple and inexpensive means of changing one's name. The rationale in Forbush was that the requirement that a woman applicant for a driver's license must use her husband's surname is a reasonable and rational one involving a state interest in orderly administration of license issuals and preserving the integrity of the license as a means of identification. Thus the Sixth Circuit held that the requirement of the Kentucky Division of Driver Licensing, that a married woman's application for license be in her husband's surname, could be constitutionally imposed, regardless of the common law question. The plaintiff had alleged that such requirement violated her civil rights under the due process and equal protection clauses of the Fourteenth Amendment. The Supreme Court later denied certiorari in Whitlow.
In answer to your question, a woman in Kentucky will have to take the name of her husband in order to get a valid Kentucky driver's license, regardless of the common law question, because of the Sixth Circuit holding in Whitlow, above. The only recognized exception to that, under Whitlow v. Hodges, would be where the married woman goes to the county court under KRS 401.010 and procures an order changing her name to something other than her husband's surname. If she procures such an order [her maiden name is restored] under that statute, she may then legally apply for a license, or renewal, under her maiden surname. Such a license issued in her maiden surname, under the latter, circumstances, would be valid.