Can married parents in Tennessee give their child a 'mashed-up' surname combining parts of each parent's last name on the birth certificate?

Plain-English summary

When a child's mother is married to the child's biological father at the time of conception, birth, or any time in between, Tenn. Code Ann. § 68-3-305(a)(1) tells the Office of Vital Records what surname options the parents have for the birth certificate. The AG was asked whether the parents could craft a hybrid surname out of pieces of each parent's last name, the example used was combining "Johnson" and "McAllister" into "Johnister."

The AG said no. The statute's text gives the parents specific options: the father's surname, the father's surname combined with either the mother's surname or the mother's maiden surname, or, with the mutual agreement of both parents, the mother's surname or maiden surname (or those two combined). "In combination with" means putting the names together (typically with a hyphen), not splicing letters from each. A made-up word that does not contain either parent's full name falls outside the listed options.

The same restriction applies to the post-birth name change procedure in Tenn. Code Ann. § 68-3-305(a)(4), which lets parents change the surname by sworn statement within the child's first year. That subsection allows the same combinations and uses the same "of the surnames listed" language, so the same logic excludes hybrids.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What surname options does the statute allow for a child of married parents?
A: As of 2014, the statute allowed the father's surname (alone), the father's surname combined with the mother's surname, the father's surname combined with the mother's maiden surname, or, by mutual agreement of both parents, the mother's surname or maiden surname (or those two combined).

Q: Why isn't a name like "Johnister" allowed?
A: The AG read "in combination with" to mean joining the two surnames, not creating a new word from parts. A coined hybrid contains neither parent's actual surname, which puts it outside the four listed options.

Q: Can parents fix the surname later if they change their minds?
A: Yes, but only within the first year and only to one of the same listed surnames. Under § 68-3-305(a)(4), both parents must sign and submit a sworn statement to the Office of Vital Records, and the new name must be one of: the father's surname, the mother's surname, the mother's maiden surname, or any combination of those three. The same "of the surnames listed" limit applies, so a hybrid is still not allowed by this route.

Q: What if the parents simply want to use only the mother's name?
A: Subdivision (a)(2) of § 68-3-305 permits the mother's surname or maiden surname (or those two combined) for a child of married parents only by mutual agreement of both parents.

Q: What if a parent wants to change a child's name to something this statute does not allow?
A: The opinion addresses the birth-certificate surname rules. Tennessee also has a separate legal-name-change procedure outside the birth-certificate context, which is a different statutory pathway and was not addressed in this opinion.

Background and statutory framework

Tennessee's birth-certificate surname rule has a parental-presumption design. If the mother is married to the natural father at the time of conception or birth (or any time in between), the father's name "shall be entered on the certificate." The child's surname must be one of the listed options. The mother-only or mother-maiden-only options exist but require the agreement of both parents.

The opinion turns on a plain-language reading of the statute. The Tennessee Supreme Court's decision in Carson Creek Vacation Resorts, Inc. v. Tenn. Dep't of Revenue, 865 S.W.2d 1 (Tenn. 1993), is the AG's authority for the proposition that the meaning of an unambiguous statute comes from its plain language. The AG concluded that "in combination with" refers to joining two surnames in their actual form, and the post-birth correction provision is even more explicit in requiring any combination to be made "of the surnames listed."

Citations and references

Statutes:

• Tenn. Code Ann. § 68-3-305 (surname on birth certificate; vital records)

Cases:

• Carson Creek Vacation Resorts, Inc. v. Tenn. Dep't of Revenue, 865 S.W.2d 1 (Tenn. 1993) (Tennessee Supreme Court; plain-language rule of statutory interpretation)

Subject

Opinion No. 14-75, Surname Entered on Birth Certificate, August 14, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-075.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
August 14, 2014
Opinion No. 14-75
Surname Entered on Birth Certificate

QUESTION

Does Tenn. Code Ann. § 68-3-305(a) permit the married natural parents of a child to select as the child's surname on his or her birth certificate a combination of part of the surname of the child's natural father and part of the surname (or maiden surname) of the child's mother?

OPINION

No.

ANALYSIS

Tenn. Code Ann. § 68-3-305(a)(1) provides:

(a)(1) If the mother was married at the time of either conception or birth, or anytime between conception and birth, to the natural father of the child, the name of the natural father shall be entered on the certificate and the surname of the child shall be entered on the certificate as one of the following:

(A) The surname of the natural father; or

(B) The surname of the natural father in combination with either the mother's surname or the mother's maiden surname.

Subdivision (a)(1) thus requires inclusion of the father's surname on the child's birth certificate. The child's surname may include only the mother's surname or maiden surname (or a combination of those two surnames), but only upon mutual agreement of both parents. Tenn. Code Ann. § 68-3-305(a)(2).

Based on its plain language, Tenn. Code Ann. § 68-3-305(a) does not permit the surname of the child to be listed on a birth certificate using only a portion of the father's surname and a portion of the mother's surname (or maiden surname). See Carson Creek Vacation Resorts, Inc. v. Tenn. Dep't of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993) (the meaning of an unambiguous statute is determined from the statute's plain language). For example, if the father's surname were "Johnson" and the mother's surname were "McAllister," the child's surname could be "Johnson" or "Johnson-McAllister" or "McAllister-Johnson," or "McAllister" by mutual agreement of both parents. But it could not be "Johnister" or "McAllinson." The statute allows for use of the father's surname "in combination with" the mother's surname, but a hybrid surname such as "Johnister" would include neither parent's surname.

Parents can also change their child's surname within the first year after birth by submitting a sworn statement to the Office of Vital Records. Tenn. Code Ann. § 68-3-305(a)(4) provides:

If, within the first year after the child's date of birth, both the mother and the father sign and submit a sworn statement to the office of vital records that both parents wish to change the child's surname, then the office of vital records shall amend the child's birth certificate in accordance with the parents' request to change the child's surname, if the chosen surname is either:

(A) The surname of the natural father;
(B) The surname of the mother;
(C) The mother's maiden surname; or
(D) Any combination of the surnames listed in subdivisions (a)(4)(A)-(C).

This subdivision affords the same surname options as § 68-3-305(a)(1) and (2). But any combination must still be "of the surnames listed" (emphasis added). Subdivision (a)(4), therefore, does not permit the surname of the child to be changed to a hybrid surname.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

SARA E. SEDGWICK
Senior Counsel

Requested by:
The Honorable Charles M. Sargent
State Representative
206 War Memorial Building
Nashville, Tennessee 37243