Request By:
Ms. Marilyn B. Traylor
Voter Registration Office
Fayette County Court House
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of April 6 in which you request an opinion concerning the following:
"Can a woman sign her maiden name on the permanent voter registration card for her signature or must she use her husband's name?"
Our response to your question would be in the affirmative. We initially refer you to OAG 74-902 [copy enclosed] in which this office concluded: (1) There is no statute or applicable case decision in Kentucky compelling the wife's taking of the husband's surname; and (2) The general common law rule that anyone may change his or her name, except where there is an intent to defraud, has not been abrogated in Kentucky. We are also enclosing a copy of OAG 77-72 relating to the general subject.
With respect to your specific question dealing with voter registration, the only statute pertaining to the subject is KRS 116.085 (3), which reads as follows:
"Any voter who changes his name shall indicate the change at the precinct on election day by signing an oath, in duplicate, on forms supplied by the state board, indicating the change. The oath shall be returned by the precinct officer to the county clerk, who shall retain the original oath for his records and send the duplicate to the state board. "
You will note that the above statute does not in any way compel married women to register to vote in their husbands' surname. As a matter of fact, the statute appears to simply apply to anyone having changed his name from that found on the registration records at the precinct so that he can attest to such change and vote, and thereafter his registration card will reflect the change for voting purposes. Thus, in effect, we find no statute requiring a wife to register under her husband's surname. We also find a number of cases sustaining the right of a married woman to use her maiden name for voter registration purposes and one particularly is Stuart v. Board of Supervisors of Elections, 295 A.2d 223 (1972). In this case the married woman was notified by the Board of Supervisors of Elections that since under Maryland law a woman's legal surname becomes that of her husband upon marriage, she was required by the Maryland Code to complete a request for change of name form or her registration would be cancelled. In holding that a married woman may use her maiden name without legal proceedings in so far as registering to vote is concerned, we find the Court stating the following:
". . . We have heretofore unequivocally recognized the common law right of any person, absent a statute to the contrary, to 'adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued.' Romans v. State, 178 Md. 588, 597, 16 A.2d 642, 646 . . . ."
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"If a married woman may lawfully adopt an assumed name (which, in Erie, was neither her birth given name nor the name of her lawful husband) without legal proceedings, then we think Maryland law manifestly permits a married woman to retain her birth given name by the same procedure of consistent, nonfraudulent use following her marriage. . . ."
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"Under the common law of Maryland, as derived from the common law of England, Mary Emily Stuart's surname thus has not been changed by operation of law to that of Austell solely by reason of her marraige to him. On the contrary, because of her exclusive, consistent, nonfraudulent use of her maiden name, she is entitled to use the name of Mary Emily Stuart unless there is a statute to the contrary. Romans v. State, supra. We do not think that the provisions of Article 33, § 3-18(a) (3) and (c), heretofore set forth, require that a married woman register to vote in the surname of her husband unless her name has been changed by legal proceedings under Maryland Rules BH70-BH75, and Article 16, § 123 of the Annotated Code of Maryland, as claimed by the Board. We are unable to attribute to that Section, even with the aid of a long-standing and uniform administrative practice, such an effect in derogation of the common law. . . ."
See also Dunn v. Palermo, 522 S.W.2d 679 (1975).
Under the circumstances, we are of the opinion that a married woman may use her maiden name in registering to vote without going through any legal proceeding to change her name following marriage and be entitled to vote provided it is done in good faith and without fradulent intent.