IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 150

OCTOBER TERM, A.D. 2013

December 10, 2013

THE ESTATE OF JOAN M. 

MARUSICH,

Appellant 

(Petitioner),

v. 

STATE OF WYOMING, ex rel., 

DEPARTMENT OF HEALTH, OFFICE 

OF HEALTHCARE 

FINANCING/EQUALITYCARE,

Appellee

(Respondent).

S-13-0036

Appeal from the District Court of Albany County

The Honorable Jeffrey A. Donnell, Judge

Representing Appellant:

Craig C. Cook and Dennis C. Cook of Cook & Associates, P.C., Laramie, 

Wyoming. Argument by Mr. Craig C. Cook.

Representing Appellee:

Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy 

Attorney General; Kristin M. Nuss, Senior Assistant Attorney General. Argument 

by Ms. Nuss.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KITE, Chief Justice.

[¶1] After Joan M. Marusich died, the State of Wyoming ex rel. Department of Health, 

Office of Healthcare Financing/Equalitycare (Department) filed a lien against the home 

she owned with her husband, William Marusich, as tenants by the entirety. The 

Department sought to recover the cost of Medicaid benefits paid on behalf of Mr. 

Marusich, who had predeceased Mrs. Marusich. The Estate of Joan M. Marusich 

(Marusich Estate) filed a petition to remove a false lien. The district court granted 

summary judgment in favor of the Department, ruling that under the relevant federal and 

state laws, the lien was appropriate. After the district court entered a final judgment on 

the amount of the lien and denied the Marusich Estate’s motion to amend the petition, the 

estate appealed. 

[¶2] We affirm. 

ISSUES

[¶3] The Marusich Estate presents the following issues on appeal:

1. Whether property owned by a married couple as 

tenants by the entireties may be subject to a lien against 

property in the estate of the surviving spouse for recovery of 

Medicaid expenses paid solely on behalf of the predeceased 

spouse.

2. Whether the remedial provisions of W.S. § 29-

1-601(b) may be invoked against appellee as claimant on a 

legally groundless and impermiss[i]ble recorded claim of lien.

3. Whether the district court erred when it denied a 

motion to amend petition to conform the pleadings to the 

underlying cause of action in quiet title that was argued by the 

parties on cross motions for summary judgment. 

The Department’s issues are similar, though phrased differently. 

FACTS

[¶4] The material facts of this case are undisputed. Mr. and Mrs. Marusich had been 

married almost forty-four years when Mr. Marusich died in 2005. At the time of his 

death and for several years before, Mr. Marusich was an inpatient in a nursing home, and 

he received Medicaid benefits to assist in paying for his care. Mrs. Marusich continued 
2

to live in the marital home, which they owned as “husband and wife.” Mrs. Marusich did 

not receive Medicaid benefits and died intestate in February 2012. 

[¶5] On April 6, 2012, the Department filed a lien against the Marusiches’ home to 

recover Medicaid expenses of $160,410.66 paid on behalf of Mr. Marusich. On April 11, 

2012, the district court opened the Marusich Estate. Although notification of the probate 

was published in the local newspaper, the Marusich Estate did not send a notice to the 

Department and, accordingly, it did not file a claim in accordance with probate law. On 

April 19, 2012, the estate’s attorney and co-administrator executed and recorded an 

Affidavit of Survivorship, stating that Mrs. Marusich had full survivorship interest in the 

marital property upon Mr. Marusich’s death in 2005. 

[¶6] On August 8, 2012, the Marusich Estate filed a Petition to Remove False Lien 

against the Department, pursuant to Wyo. Stat. Ann. § 29-1-601(b) (LexisNexis 2013).

1

 

The Department answered asserting the lien was valid, counterclaimed for a judgment in 

the amount of the lien and requested an order allowing sale of the property to satisfy its 

lien. The parties filed competing motions for summary judgment, and, after a hearing, 

the district court granted summary judgment in favor of the Department and against the 

 

1

 Wyo. Stat. Ann. § 29-1-601(b) states in relevant part:

 (b) Any person whose real or personal property is subject to a recorded claim of lien 

who believes . . . that the lien claimant knew at the time of filing that the lien was 

groundless, [or] contained a material misstatement or false claim, may petition the court 

having jurisdiction over the lien of the county in which the claim of lien has been 

recorded for the relief provided in this subsection. The petition shall state the grounds 

upon which relief is requested, and shall be supported by the affidavit of the petitioner or 

his attorney setting forth a concise statement of the facts upon which the motion is based. 

. . . Upon the filing of the petition the following shall apply:

(i) The court may enter its order, which may be granted ex parte, directing the 

lien claimant to appear before the court at a time no earlier than six (6) nor later than 

fifteen (15) days following the date of service of the petition, and order the lien claimant 

to show cause, if any, why the relief provided in this subsection should not be granted;

. . . .

(iv) If, following a hearing on the matter the court determines . . . that the lien 

claimant knew at the time of filing that the lien was groundless or contained a material 

misstatement or false claim, the court shall issue an order striking and releasing the claim

of lien and awarding damages of one thousand dollars ($1,000.00) or actual damages, 

whichever is greater, costs and reasonable attorneys’ fees to the petitioner to be paid by 

the lien claimant;

(v) If the court determines that the claim of lien is valid, the court shall issue an 

order so stating and shall award costs and reasonable attorneys’ fees to the lien claimant 

to be paid by the petitioner.
3

Marusich Estate on the validity of the lien but concluded there was a genuine issue of fact 

regarding the proper amount of the lien. The parties subsequently stipulated as to the 

amount of Medicaid benefits paid by the Department on behalf of Mr. Marusich and the 

district court entered a final judgment. The district court also denied the Marusich 

Estate’s motion to amend its petition. The Marusich Estate filed a timely notice of 

appeal. 

STANDARD OF REVIEW

[¶7] With regard to the district court’s grant of summary judgment in favor of the 

Department, we look to W.R.C.P. 56(c):

The judgment sought shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a 

matter of law. 

We review a district court’s summary judgment rulings de 

novo, using the same materials and following the same 

standards as the district court. The facts are reviewed from 

the vantage point most favorable to the party who opposed 

the motion, and we give that party the benefit of all favorable 

inferences that may fairly be drawn from the record. 

Michael’s Constr., Inc. v. American Nat’l Bank, 2012 WY 76, ¶ 8, 278 P.3d 701, 703-04 

(Wyo. 2012); Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 16, 261 P.3d 

731, 735-36 (Wyo. 2011). This case requires interpretation of the relevant statutes which 

is a question of law subject to our de novo standard of review. Western Wyo. Constr. Co.

v. Bd. of County Comm’rs of Sublette County, 2013 WY 63, ¶¶ 10, 15, 301 P.3d 512, 

514-16 (Wyo. 2013); Vogel v. Onyx Acceptance Corp., 2011 WY 163, ¶ 21, 267 P.3d 

1057, 1063 (Wyo. 2011). 

[¶8] The district court has discretion in ruling on a motion to amend a pleading, and we 

will not reverse its decision unless it abused its discretion. Jasper v. Brinckerhoff, 2008 

WY 32, ¶ 8, 179 P.3d 857, 862 (Wyo. 2008). The core inquiry under the abuse of 

discretion standard is whether the district court could have reasonably concluded as it did. 

Fix v. South Wilderness Ranch Homeowners Ass’n, 2012 WY 96, ¶ 12, 280 P.3d 527, 531 

(Wyo. 2012); Magin v. Solitude Homeowner’s, Inc., 2011 WY 102, ¶ 40, 255 P.3d 920, 

932 (Wyo. 2011).

DISCUSSION
4

1. Lien for Recovery of Medicaid Benefits

[¶9] Before discussing the specific aspects of this case, it is helpful to set out some 

general principles of Medicaid benefits recovery. Medicaid is a program that provides 

medical benefits to qualified recipients and is designed to be a “‘payer of last resort.’” 

Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 291, 126 S. Ct. 

1752, 164 L. Ed. 2d 459 (2006), quoting S.Rep. No. 99-146 at 313 (1985); Wyo. Stat. 

Ann. §§ 42-4-101, 102; State ex rel. Dep’t of Health, Div. of Healthcare Financing v. 

Dairyland Ins. Co., 11 P.3d 348, 350-51 (Wyo. 2000). See also Poindexter v. State of 

Illinois, Dep’t of Human Servs., 869 N.E.2d 139, 149 (Ill. App. Ct. 2006). The federal 

and state governments jointly fund Medicaid, and individual states administer the 

program. Cargill v. Dep’t of Health, Div. of Healthcare Financing, 967 P.2d 999, 1001 

(Wyo. 1998). Before a state can receive federal appropriations for Medicaid, a state plan 

must be approved by the appropriate federal agency. Id. See also 42 U.S.C. § 1396; 

Dairyland, 11 P.3d at 351. The state plan must include provisions for collecting payment 

from any legally liable third party, including the estate of the Medicaid recipient or his or 

her spouse. In the Matter of the Estate of Campbell, 950 P.2d 557, 559 (Wyo. 1997). See 

also Knori v. State of Wyoming ex rel. Dep’t of Health, Office of Medicaid, 2005 WY 48, 

¶ 5, 109 P.3d 905, 907 (Wyo. 2005). 

[¶10] U.S.C. § 1346p(b)(4)(A) and (B)2allow the states to choose between defining the 

“estate” from which Medicaid recovery may be made by typical state probate law or by 

using an expanded definition which includes non-probate assets. Wyoming complied 

with the federal mandate to enact Medicaid benefits recovery provisions and adopted the 

expanded definition of “estate.” Knori, ¶ 5, 109 P.3d at 907. 

[¶11] Wyo. Stat. Ann. § 42-4-206 (LexisNexis 2013) states in relevant part:

 

2

Section 1346p(b) states in pertinent part:

(4) For purposes of this subsection, the term “estate”, with respect to a deceased 

individual--

(A) shall include all real and personal property and other assets included 

within the individual’s estate, as defined for purposes of State probate law; and

(B) may include, at the option of the State (and shall include, in the case 

of an individual to whom paragraph (1)(C)(i) applies), any other real and personal 

property and other assets in which the individual had any legal title or interest at the time 

of death (to the extent of such interest), including such assets conveyed to a survivor, 

heir, or assign of the deceased individual through joint tenancy, tenancy in common, 

survivorship, life estate, living trust, or other arrangement.
5

(a) If an individual receives any medical assistance 

pursuant to this chapter, upon the individual’s death, if single, 

or upon the death of the survivor of a married couple, either 

of whom received medical assistance, the total amount paid 

for medical assistance rendered for the individual or the 

spouse shall be filed by the department as a claim against the 

estate of the individual or the estate of the surviving spouse in 

the court having jurisdiction to probate the estate. A claim

shall be filed if medical assistance was rendered for either 

person under one (1) of the following circumstances:

 (i) The person was fifty-five (55) years of age or 

older when he received medical assistance; or

 (ii) The person was an inpatient in a nursing facility, 

intermediate care facility for people with intellectual 

disability or other medical institution when he received 

medical assistance.

. . . . 

(c) The claim shall include only the total amount of 

medical assistance rendered after the individual attains fiftyfive (55) years of age or during a period of institutionalization 

as described in paragraph (a)(ii) of this section, and shall not 

include interest. A claim for medical assistance rendered for 

the predeceased spouse, against the estate of a surviving 

spouse who did not receive medical assistance, is limited to 

the value of the assets of the estate that were marital property 

or jointly owned property at any time during the marriage.

. . . . 

(g) As used in this section:

 (i) “Asset” means as defined under W.S. 42-2-

401(a)(i);

 (ii) “Estate” shall include all real and personal 

property and other assets included within the individual’s 

estate, as defined for purposes of this state’s probate law, and 

includes any other real and personal property and other assets 

in which the individual had any legal title or interest at the 

time of death to the extent of that interest, including such 

assets conveyed to a survivor, heir or assign of the deceased 
6

individual through joint tenancy, tenancy in common, 

survivorship life estate, living trust or other arrangement.3

[¶12] Wyo. Stat. Ann. § 42-4-207(j) specifically permits the filing of a lien against the 

property of a deceased recipient’s estate, as that term is defined in § 42-4-206(g)(ii):

(j) The department may file a lien against the property 

of any estate, as defined in W.S. 42-4-206(g), of a deceased 

recipient for the amount of medical assistance provided while 

the recipient was fifty-five (55) years of age or older or while 

the recipient was an inpatient in a nursing facility, 

intermediate care facility for people with intellectual 

disability or other medical institution. The department shall 

perfect this lien by filing a notice in the county in which the 

real property exists. . . . 

[¶13] The parties agree the deed which granted the property to the Marusiches as 

“husband and wife” created a tenancy by the entirety. That is consistent with our 

precedent. See, e.g., Witzel v. Witzel, 386 P.2d 103, 105 (Wyo. 1963); Peters v. Dona, 54 

P.2d 817, 819-20 (Wyo. 1936). The Marusich Estate argues the Department was not 

entitled to take a lien against the house because it was owned by Mr. and Mrs. Marusich 

as tenants by the entirety and that tenancy was not identified in § 42-4-206(g)(ii) as part 

of the “estate.” The district court concluded that the legislature intended that property 

owned in tenancy by the entirety be included within the definition of estate as an “other 

arrangement.” 

[¶14] We interpret statutes by applying the following principles:

[Our] paramount consideration is to determine the 

legislature’s intent, which must be ascertained initially and 

primarily from the words used in the statute. We look first to 

the plain and ordinary meaning of the words to determine if 

the statute is ambiguous. A statute is clear and unambiguous 

if its wording is such that reasonable persons are able to agree 

on its meaning with consistency and predictability. 

Conversely, a statute is ambiguous if it is found to be vague 

or uncertain and subject to varying interpretations.

 

3 There are a few minor differences between the federal and Wyoming versions but there is no argument 

the differences are relevant in this case. Compare U.S.C. § 1346(b)(4)(B) with § 42-4-206(g)(ii).

 
7

Office of State Lands & Invs. v. Mule Shoe Ranch, Inc., 2011 WY 68, ¶ 13, 252 P.3d 951, 

954–55 (Wyo. 2011), quoting Dorr v. Smith, Keller & Assoc., 2010 WY 120, ¶ 11, 238 

P.3d 549, 552 (Wyo. 2010). See also Vogel, ¶ 21, 267 P.3d at 1063. The determination 

of whether a statute is clear or ambiguous is a matter of law for the court. Office of State 

Lands, ¶ 13, 252 P.3d at 955. In ascertaining the meaning of a statutory provision, all 

statutes relating to the same subject or having the same general purpose must be 

considered and construed in harmony. Mountain Cement Co. v. South of Laramie Water 

& Sewer Dist., 2011 WY 81, ¶ 13, 255 P.3d 881, 885 (Wyo. 2011). 

[¶15] As we stated earlier, Wyoming adopted the expanded definition of “estate” which 

clearly includes non-probate assets that pass by operation of law upon the death of one of 

the tenants. Section 42-4-206(g)(ii). Tenancy by the entirety is not specifically listed in 

the statutory section; nonetheless, the definition of estate is expansive, including 

survivorship tenancies and “other arrangements.” The clear intent of the statute is to 

reach any type of non-probate survivorship interest. This intent is, in fact, confirmed in 

other Wyoming statutes. In Wyo. Stat. Ann. § 4-10-402(c) (LexisNexis 2013) the 

legislature directed that the typical protections which inured to tenancies by the entirety 

would be preserved when the property was transferred into a living trust. However, § 4-

10-402(e) also specifically states: “Nothing in this section shall be construed to limit or 

otherwise alter the authority granted to the department of health to assert a claim against 

an estate under W.S. 42-4-206 or to file a lien under W.S. 42-4-207 as could be asserted 

against a tenancy by the entirety . . . .” If tenancies by the entirety were not included 

within the definition of estate in § 42-4-206(g)(ii), § 4-10-402(e) would not be necessary. 

We, therefore, conclude the plain language of § 42-4-206(g)(ii) includes tenancy by the 

entirety as an “other arrangement” within the individual’s Medicaid recovery “estate.” 

[¶16] The Marusich Estate also argues that a tenancy by the entirety does not include 

any separate interest of a spouse; hence, the first deceased spouse does not have any 

interest at the time of death. There are Wyoming statutes which refer to tenancy by the 

entirety. For example, Wyo. Stat. Ann. § 34-1-140 (LexisNexis 2013) allows property 

owners to create a joint tenancy or tenancy by the entirety without using a strawman. 

However, there are no statutes which specifically state the requirements for establishing a 

tenancy by the entirety or its particular attributes. Consequently, most of Wyoming’s law 

on this matter is found in the common law, as reflected in our published precedent. See

In re Anselmi, 52 B.R. 479, 484-85 (D.Wyo. 1985). 

[¶17] Five requirements are necessary to establish a tenancy by the entirety:

[T]here are technical requirements of a joint tenancy or 

tenancy by the entirety. There are four essential 

characteristics of either tenancy, viz., (1) unity of interest, 

(2) unity of title, (3) unity of time, and (4) unity of

possession. For a tenancy by the entirety, there is of 
8

course the additional characteristic of unity of person 

which exists only in the case of a husband and wife.

Wambeke v. Hopkin, 372 P.2d 470, 475 (Wyo.1962) (citing 

Peters v. Dona, 49 Wyo. 306, 54 P.2d 817, 820 (1936); 41 

C.J.S. Husband and Wife § 31, p. 442; 14 Am.Jur., 

Cotenancy, § 7, p. 81).

Baker v. Speaks, 2013 WY 24, ¶ 47, 295 P.3d 847, 858 (Wyo. 2013). 

[¶18] In general, neither spouse may convey his or her interest as a tenant by the entirety

without being joined in the conveyance by the other spouse. Ward Terry & Co. v. 

Hensen, 297 P.2d 213, 215 (Wyo. 1956). Property held in tenancy by the entirety is not 

part of the first deceased spouse’s probate proceeding; instead, it passes to the surviving 

spouse by operation of law. Id. See also Wambeke, 372 P.2d at 474. As we explained 

many years ago in In re Bergman’s Survivorship, 151 P.2d 360, 368 (Wyo. 1944), such 

property “becomes the absolute property of the survivor upon the death of a spouse and is 

not part of the estate of the latter.” In addition to the restraints on conveyance and devise, 

property held in tenancy by the entirety is generally not subject to legal process to satisfy 

a debt of only one spouse. Ward Terry, 297 P.2d at 219. See also Peters, 54 P.2d at 820-

22; Colorado Nat’l Bank v. Miles, 711 P.2d 390, 393-94 (Wyo. 1985). The purpose of 

these rules is to protect each spouse’s right to possession and enjoyment of the property. 

Ward Terry, 297 P.2d at 218-20. 

[¶19] The fact that neither spouse, alone, may encumber or alienate property held in 

tenancy by the entirety, and it may not be subject to the debt of just one spouse does not 

necessarily lead to a rule that such property is forever exempt from execution for one of 

their debts. Even the early statements of the rule contain the caveat that it only applies 

during the life of the surviving spouse. In Ward Terry, 297 P.2d at 218-19, this Court 

quoted McCurdy v. Canning, 64 Pa. 39, 41-42 (Pa. 1870) (emphasis added) as follows:

[O]ne who, without the consent of the wife, purchases 

the husband’s interest in real estate in which both husband 

and wife are seised of the entirety, and to the possession of 

the whole of which she is entitled equally with him, does not 

acquire, during the wife’s life, any right to the possession, 

either jointly with her or to her entire exclusion. 

Similarly, we quoted Shinn v. Shinn, 21 P. 813, 815 (Kan. 1889):

As long as the wife lives, the property cannot be legally 

seized or sold on execution for the husband’s debts; nor 

could the purchaser, if the property should be sold, take the 
9

possession of it, for the wife has the exclusive right to the 

possession thereof, and to the use and control of the same, 

except as against her husband alone, who has a like right to 

the possession and to the use and control of the same.’

Ward Terry, 297 P.2d at 219 (emphasis added). See also Colorado Nat’l Bank, 711 P.2d 

at 393. 

[¶20] The Medicaid recovery statutes specifically recognize the surviving spouse’s right 

to possession and enjoyment of the marital property by delaying execution until after the 

death of the surviving spouse.4 See § 42-4-206(a). See also 79 Am.Jur.2d Welfare § 41 

(2013). This accommodation protects the surviving spouse from impoverishment while 

allowing the Department to recover Medicaid benefits when the surviving spouse dies in 

order to fund future services to needy persons. 79 Am.Jur.2d Welfare § 41; Wisconsin 

Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473, 480, 122 S. Ct. 962, 151 L. Ed. 

2d 935 (2002); In re Estate of Jobe, 590 N.W.2d 162, 166 (Minn. Ct. App. 1999). The 

procedure also recognizes the surviving spouse’s common law entirety interest by 

allowing full use of the property and its value during his or her life. To the extent the 

Medicaid recovery statutes change the common law, the legislature has the prerogative to 

do so, provided its intent was sufficiently clear. Ward Terry, 297 P.2d at 220. See also

Sorenson v. State Farm Auto. Ins. Co., 2010 WY 101, ¶ 19, 234 P.3d 1233, 1238 (Wyo. 

2010). As we stated earlier, the statutes clearly indicate the legislature intended for 

entirety property to be available to the Department for reimbursement of Medicaid 

benefits once both spouses have died. 

[¶21] The Marusich Estate argues that cases from other jurisdictions support its position 

that the tenancy by the entirety interest is not available for Medicaid recovery, placing 

particular emphasis on In re Estate of Barg, 752 N.W.2d 52 (Minn. 2008). In that case, 

the husband and wife owned property as joint tenants. The wife entered a nursing home 

and received Medicaid benefits. Prior to her death, the wife transferred her interest in the 

joint property to her husband. After the husband died, the Welfare Department sought to 

recover Medicaid benefits paid on behalf of the wife from the husband’s estate. Id. at 57. 

Minnesota had adopted the optional expanded definition of estate, and the Welfare 

Department argued it was entitled to recover against the real property because the wife 

had owned it “at any time during the marriage,” relying on a provision similar to § 42-4-

206(c). Id. at 61. 

[¶22] The Minnesota Supreme Court acknowledged that its Medicaid recovery statutes 

modified “common law to provide for continuation of a recipient’s life estate or joint 

 

4 Restrictions on recovery also apply under other circumstances, such as if the recipient, if single, or 

surviving spouse of a married couple is survived by a child under the age of twenty-one, etc. See §§ 42-4-

206 through 207. Those restrictions are not applicable here. 
10

tenancy interest in real property after his death for the purposes of recovering medical 

assistance.” Id. at 61. Compare, In re Estate of Bruce, 260 S.W.2d 398 (Mo. Ct. App. 

2008) (holding the state was not allowed to recover Medicaid benefits from property 

previously held in tenancy by the entirety because the Missouri General Assembly had 

not adopted the expanded definition of estate); Hines v. Dep’t of Public Aid, 850 N.E.2d 

148, 154-55 (Ill. 2006) (holding Illinois had not adopted the more expansive definition of 

“estate” except where a long-term care insurance policy was involved). However, the 

Barg court also recognized the statutory language expanding the definition of estate 

which, like our § 42-4-206(g)(ii), covered “other assets in which the individual had any 

legal title or interest at the time of death,” and concluded the state’s authority to recover a 

Medicaid recipient’s assets was limited to those he or she had an interest in at the time of 

death. Id. at 69-70. Because the recipient spouse, the wife, had transferred all of her 

interest in jointly held property to her husband prior to her death, she did not own any 

interest at the time of her death and the assets were not available for Medicaid benefits 

recovery. Id. See also In re Estate of Grote, 766 N.W.2d 82, 86-87 (Minn. Ct. App. 

2009) (emphasizing the important distinction between jointly held assets transferred 

before the first spouse’s death, which are not available for recovery, and those transferred 

by operation of law upon death, which are). 

[¶23] In North Dakota Dep’t of Human Servs. v. Thompson, 586 N.W.2d 847, 850 (N.D. 

1998), the North Dakota Supreme Court held that the “expansive definition [of estate] is 

broad enough to encompass the department’s claim against the estate of a deceased 

spouse of a deceased recipient of medical assistance benefits for the amount of medical 

assistance paid out, to the extent the recipient at the time of death had any title or interest 

in assets which were conveyed to his or her spouse” by survivorship rights. In that case, 

the property was held jointly by the spouses with a right of survivorship and had earlier 

passed to the surviving spouse by operation of law. Id. at 850 n.2. 

[¶24] In In re Estate of Smith, 2006 WL 3114250 (Tenn. Ct. App. 2006), a Tennessee 

Court of Appeals rejected the state’s effort to reach property which had originally been 

held by husband and wife as tenants by the entirety because the wife had transferred all of 

her interest to the husband before she died. However, it is significant for our purposes 

that the court did not suggest that property held in tenancy by the entirety is never subject 

to Medicaid recovery efforts. Similarly, the Missouri Court of Appeals in Bruce, 260 

S.W.2d at 403-404, indicated the expanded definition of estate would apply to property 

held as tenants by the entirety. 

[¶25] While Barg and Smith ultimately reached a result consistent with that sought by 

the Marusich Estate, they do not support its argument that the house should not be 

available for recovery. In fact, those cases compel the opposite conclusion. Given Mr. 

Marusich owned an interest in the house when he died (unlike the recipient spouses in 

Barg and Smith), it was within the Department’s authority to file a lien even though his 

interest passed by operation of law to Mrs. Marusich upon his death. The present case is 
11

akin to Thompson, in which the North Dakota Supreme Court held that survivorship 

assets are available for Medicaid recovery under the expanded definition of estate after 

the surviving spouse dies. 

[¶26] The Marusich Estate also argues that the Department could not recover because it 

did not file a creditor’s claim in Mrs. Marusich’s probate proceeding. Sections 42-4-206 

and 207 provide two separate means of recovering Medicaid payments. Section 42-4-206 

allows creditor claims in estates and § 42-4-207 allows liens. When Medicaid 

reimbursement is sought against the recipient’s or his or her spouse’s probate estate under 

§ 42-4-206, then the requirements for filing claims against estates under our probate law 

apply. Campbell, 950 P.2d at 559-60. However, given the Department’s lien in this case 

was against Mr. Marusich’s “estate” as defined in the Medicaid recovery statutes and not

against the surviving spouse’s probate estate, a creditor’s claim in Mrs. Marusich’s 

probate estate was unnecessary. 

[¶27] The district court correctly granted summary judgment upholding the 

Department’s lien.5 

2. Relief Under False Lien Statute

[¶28] In a confusing argument, the Marusich Estate asserts that the remedial provisions 

of § 29-1-601(b) should be applied to extinguish the Department’s lien and award it 

damages and attorney fees. Section 29-1-601(b) provides: “Any person whose real or 

personal property is subject to a recorded claim of lien who believes . . . that the lien 

claimant knew at the time of filing that the lien was groundless, [or] contained a material 

misstatement or false claim, may petition the court having jurisdiction over the lien of the 

county in which the claim of lien has been recorded for the relief provided in this 

subsection.” Under the statute, if the court determines the lien was false or groundless, it 

must strike the lien and award the property owner damages and attorney fees. Section 

29-1-601(b)(iv). On the other hand, if the court determines the lien was valid, then the 

lien claimant is entitled to costs and attorney fees. Section 29-1-601(b)(v). 

[¶29] Section 29-1-601 does not set out the requirements for a valid lien; that is 

determined by applying other substantive law. Given we have affirmed the district 

court’s decision on the validity of the Department’s Medicaid lien, there is no basis for 

the Marusich Estate to argue that § 29-1-601 somehow provides an additional avenue for 

invalidating the lien. 

 

5 Our decision that the lien is valid under the relevant statutes is dispositive; consequently, we do not need 

to address the Marusich Estate’s argument concerning the effect of Mrs. Marusich’s signature, or lack 

thereof, on Mr. Marusich’s Medicaid application. Additionally, any issue regarding the extent of the 

recipient spouse’s interest in tenancy by the entirety property is not properly raised or argued in this 

appeal. Accordingly, we leave that determination to another day. 
12

[¶30] As to the damages and attorney fee provisions of § 29-1-601(b), the Marusich 

Estate argues that they should apply if the lien was groundless (so the estate would 

recover), but not if the lien was valid (so the Department would recover). The basis for 

the estate’s argument that the Department is not entitled to recover attorney fees and costs 

under § 29-1-601(b) is that the Department had asserted in the district court that the 

statute did not apply to Medicaid liens and it was not a “lien claimant” under the 

provision. The Marusich Estate seems to ignore that it is the party who initiated the 

action pursuant to § 29-1-601(b). It seems disingenuous to argue the statute should apply 

if the ruling is in petitioner’s favor but not to a ruling against it. 

[¶31] In any event, although the district court stated in its decision letter that the 

Department was entitled to attorney fees and costs and the Department submitted an 

affidavit in support of its claim, the record does not indicate that the district court ever 

awarded fees and costs. In fact, the Marusich Estate concedes no such order was ever 

entered. We will not, therefore, further address the issue of whether the Department was 

entitled to attorney fees and costs. 

 

3. Motion to Amend Complaint

[¶32] In its final issue, the Marusich Estate maintains the district court erred by denying 

its motion to amend the pleadings to conform to the evidence presented at trial. It sought 

to “provide clarity to the nature of the proceedings as an action in Quiet Title as 

supplemented by W.S. § 29-1-601 in conformance with Petitioner’s subsequent pleadings 

and arguments.” The district court denied the motion to amend on the grounds it had 

already ruled the lien was valid and there was no additional dispute over title to the 

property or encumbrances. 

[¶33] W.R.C.P. 15(b) governs amendments under these circumstances:

(b) Amendments to Conform to the Evidence. – When 

issues not raised by the pleadings are tried by express or 

implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings. Such 

amendment of the pleadings as may be necessary to cause 

them to conform to the evidence and to raise these issues may 

be made upon motion of any party at any time, even after 

judgment; but failure so to amend does not affect the result of 

the trial of these issues. If evidence is objected to at the trial 

on the ground that it is not within the issues made by the 

pleadings, the court may allow the pleadings to be amended 

and shall do so freely when the presentation of the merits of 

the action will be subserved thereby and the objecting party 

fails to satisfy the court that the admission of such evidence 
13

would prejudice the party in maintaining the party's action or 

defense upon the merits. The court may grant a continuance 

to enable the objecting party to meet such evidence.

In Jasper, ¶ 8, 179 P.3d at 862 (citations omitted), we stated:

A motion to amend a pleading under W.R.C.P. 15(a) “shall be 

freely given when justice so requires.” However, a district 

court's decision to grant or deny a motion to amend is a 

matter best left to the judgment of that court and we will not 

reverse its decision absent an abuse of discretion. 

[¶34] The quiet title claim propounded by the Marusich Estate was based upon the 

validity of the Department’s Medicaid lien. In fact, the motion to amend the petition 

specifically stated that the Marusich Estate “does not seek to amend or alter any factual 

allegation in its original Petition or prayer for relief. . . . The proposed amendment will 

not, in any way, alter Petitioner’s legal arguments already presented in this matter.” As 

the district court properly recognized, the validity of the lien had already been decided. 

Whether the Marusich Estate’s claim was restyled as a quiet title action or not, the result 

would be the same. The district court did not abuse its discretion by denying the 

Marusich Estate’s motion to amend the petition. 

[¶35] Affirmed.