Notice: This opinion is subject to correction before publication in the Pacific Reporter. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

In the Matter of the Estate of 

FE PEREZ ABAD 

______________________________

In the Matter of the Estate of	 

SANDRA LEE BOATNER	 

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) Supreme Court Nos. S-18380/18450 

(Consolidated) 

Superior Court No. 3KO-20-00057 PR
 

O P I N I O N 

No. 7678 – December 22, 2023 

Superior Court No. 4FA-20-00520 PR 

Appeal in File No. S-18380 from the Superior Court of the 

State of Alaska, Third Judicial District, Kodiak, Stephen B. 

Wallace, Judge. Appeal in File No. S-18450 from the 

Superior Court of the State of Alaska, Fourth Judicial 

District, Fairbanks, Earl A. Peterson, Judge. 

Appearances: Karen L. Lambert, Lambert Law LLC, 

Kodiak, for Estate of Abad. Heather M. Brown, Franich 

Law Office, LLC, Fairbanks, for Estate of Boatner. Laura 

Fox, Senior Assistant Attorney General, Anchorage, and 

Treg R. Taylor, Attorney General, Juneau, for State of 

Alaska. 

Before: Maassen, Chief Justice, and Carney, Borghesan, and 

Henderson, Justices. [Pate, Justice, not participating.] 

BORGHESAN, Justice. 

) 

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)
 

) 

) 

) 

) 

) 

INTRODUCTION 
 Under Alaska’s probate code the deadline for filing a claim against a 

decedent’s estate depends on when the claim arose. For claims arising “before the death 

of the decedent, . . . whether due or to become due, absolute or contingent,” the creditor 

must file within four months after the representative of the estate first published notice 

to creditors.1 For claims arising “at or after the death of the decedent,” the creditor must 

file within four months after the claim arose.2 The question in these consolidated 

appeals is which deadline applies to the State’s claim against the decedent’s estate for 

reimbursement for Medicaid services provided to the decedent while alive. 

We hold that Medicaid estate recovery claims arise before death and 

therefore must be filed within four months after notice to creditors. Although the State 

may not pursue these claims until after the Medicaid beneficiary has died, these claims 

arise when Medicaid services are provided, not when the claims become enforceable. 

FACTS AND PROCEEDINGS 

A. Statutory Framework 

 “The Medicaid program is ‘a cooperative federal-state partnership under 

which participating states provide federally-funded medical services to needy 

individuals.’ ”3 In determining who qualifies for Medicaid, federal law excludes the 

value of a person’s home.

4 As a result some people receive Medicaid services despite 

owning a valuable asset. Congress addressed this “anomaly” by authorizing states to 

1 AS 13.16.460(a)(1). 

2 AS 13.16.460(b)(1). 

3 Smart v. State, Dep’t of Health & Soc. Servs., 237 P.3d 1010, 1012 

(Alaska 2010) (quoting Hidden Heights Assisted Living, Inc. v. State, Dep’t of Health 

& Soc. Servs., 222 P.3d 258, 261 (Alaska 2009)). 

4 The Medicaid Act generally excludes an individual’s principal residence 

for purposes of calculating Medicaid eligibility. West Virginia v. U.S. Dep’t of Health 

& Hum. Servs., 289 F.3d 281, 284 & n.3 (4th Cir. 2002) (citing 42 U.S.C. §§ 

1382b(a)(1), 1396a(a)(10)(A)(i)(II), 1396a(a)(10)(A)(ii)(V), 1396a(a)(10)(C)(i)(III)). 

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seek reimbursement for the cost of certain Medicaid services from the estates of 

deceased beneficiaries.

5 Estate recovery was initially optional for state Medicaid 

programs.

6 But in the face of rapidly escalating Medicaid costs, Congress amended the 

law to require states to conduct estate recovery.7 Because the State of Alaska has 

chosen to participate in Medicaid, it is obliged to comply with this federal statutory 

requirement.8 

Accordingly the Alaska Legislature enacted AS 47.07.055, authorizing 

the State’s Division of Health Care Services to seek reimbursement from the estates of 

deceased Medicaid recipients. Under this statute, “after an individual’s death, the 

individual’s estate is subject to a claim for reimbursement for [Medicaid] payments 

made on behalf of the individual . . . to the extent that those services were provided 

when the individual was 55 years of age or older.”9 The claim “may be made only after 

the death of the individual’s surviving spouse, if any,” and only if the individual has no 

surviving child who is younger than 21, blind, or totally and permanently disabled.

10 

Regulations adopted under AS 47.07.055 provide that the State will pursue estate 

recovery claims only if “the potential recovery amount would result in twice the 

administrative and legal cost of pursuing the claim, with a minimum pursuable net 

5 Id. at 284. 

6 Id. 

7 See Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103–66, 

§ 13612, 107 Stat. 312, 627-28 (codified at 42 U.S.C. § 1396p(b)(1)). 

8 Smart, 237 P.3d at 1012 (quoting Hidden Heights, 222 P.3d at 261). 

9 

 AS 47.07.055(e). Only certain kinds of services, such as “services 

received while an inpatient in a nursing facility” and “home and community-based 

services provided through waiver,” give rise to a claim for reimbursement by the State. 

AS 47.07.055(e)(1)-(2). 

10 42 U.S.C. § 1396p(b)(2)(A); AS 47.07.055(f). 

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amount of $10,000.” 11 The State may also waive estate recovery where it would cause 

undue hardship.12 

B. Abad Proceedings 

Fe Perez Abad passed away on August 19, 2020 after receiving Medicaid 

home and community-based services. Her daughter opened an informal probate case 

approximately two months later and was appointed the personal representative of 

Abad’s estate. Abad’s estate issued its first notice to creditors on October 19, 2020. 

On December 30, 2020 — less than four months after the estate published its first notice 

to creditors, but more than four months after Abad’s death — the State filed a claim 

against the estate for $200,621.62 in Medicaid reimbursement. The estate disallowed 

the State’s claim. 

The State then petitioned the superior court to allow its Medicaid 

reimbursement claim. The estate objected, arguing the claim was time-barred. The 

estate reasoned that because the claim could be asserted only against Abad’s estate, and 

not against Abad herself while alive, the claim arose at the time of Abad’s death for 

purposes of AS 13.16.460. Because the claim had not been filed within four months of 

her death, the estate argued, it was untimely. The State argued that its claim arose 

before Abad’s death, triggering the “before death” notice-based filing deadline under 

AS 13.16.460. Accordingly, the State argued, it was timely because it was filed within 

four months of when notice to creditors was first published. 

The superior court agreed with the estate, holding that the State’s 

Medicaid recovery claim did not arise during Abad’s lifetime and should have been 

brought within four months of her death. Noting that no published Alaska decision 

addressed the interaction of AS 47.07.055 and AS 13.16.460, the superior court 

11 7 Alaska Administrative Code (AAC) 160.210(c). 

12 7 AAC 160.240(a)-(b). 

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examined decisions from the Nebraska, Iowa, and Washington supreme courts. The 

superior court also rejected the State’s policy argument that a deadline tethered to death, 

rather than notice to creditors, would hamper the State’s ability to pursue estate 

recovery in accordance with federal law. 

The State filed a motion for reconsideration, which the superior court 

denied. 

The State then appealed. 

C. Boatner Proceedings 

Sandra Lee Boatner passed away on September 1, 2020. During her life 

she was the beneficiary of Medicaid services. Roughly two months after her death, 

David E. Cook opened an informal probate case; he was appointed the personal 

representative of her estate. The estate issued its first notice to creditors on December 

22, 2020. On March 24, 2021 — less than four months after the estate published its 

first notice to creditors, but more than four months after Boatner’s death — the State 

filed a claim against the estate for $300,647.29 in Medicaid reimbursement. 

In May of that year the estate disallowed the claim, maintaining that it was 

not timely filed. The State petitioned the superior court to permit its claim against 

Boatner’s estate, asserting that its claim was timely filed under AS 13.16.460(a)(1). 

The parties each moved for summary judgment. Their arguments paralleled those in 

the Estate of Abad litigation. 

A standing master recommended that the superior court adopt the State’s 

reading of Alaska’s probate filing deadlines. The standing master acknowledged that 

Medicaid estate recovery claims become enforceable after death. But because these 

claims concerned medical expenses that Boatner incurred during her lifetime, the 

standing master concluded they arose before her death. The superior court adopted the 

standing master’s recommendation. 

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 Boatner’s estate filed a motion for reconsideration, and the superior court 

denied it. The court explained that the State seeks to recover debt arising from medical 

expenses, and that “[a]ll medical expenses occur while the person is still deemed alive.” 

The court further explained that the provision of AS 47.07.055(a) limiting recovery 

until after the recipient’s death “does not shift the accrual date” or “change the fact that 

the person still received that care during her lifetime.” Rather, the court described this 

provision as “an offer of grace for the benefitted person to live out her life without 

worry of being refused care for lack of payment.” 

 Boatner’s estate appealed. We consolidated the Boatner estate’s appeal 

with the Abad estate’s appeal for purposes of oral argument and decision. 

DISCUSSION 

 These two cases present a single question of statutory interpretation: For 

purposes of the probate code’s claim filing deadlines under AS 13.16.460, does a 

Medicaid estate recovery claim under AS 47.07.055(e) arise “before death” or “at or 

after death”? The answer determines the deadline for the State to present its claim for 

reimbursement to the estate. 

 Statutory interpretation is a question of law that we review de novo.13 

“We apply our independent judgment to the interpretation of Alaska statutes and will 

interpret statutes ‘according to reason, practicality, and common sense, taking into 

account the plain meaning and purpose of the law as well as the intent of the 

drafters.’ ”14 “Statutory interpretation begins with the plain meaning of the text, but it 

does not stop there.”15 Instead, we subscribe to a “sliding scale approach to statutory 

13 Rosauer v. Manos, 440 P.3d 145, 147 (Alaska 2019). 

14 In re Est. of Rodman, 498 P.3d 1054, 1062 (Alaska 2021) (quoting Taylor 

v. Wells Fargo Home Mortg., 301 P.3d 182, 188 (Alaska 2013)). 

15 Am. Marine Corp. v. Sholin, 295 P.3d 924, 926 (Alaska 2013) (citing 

State, Com. Fisheries Entry Comm’n v. Carlson, 270 P.3d 755, 762 (Alaska 2012)). 

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interpretation,”16 under which “[t]he plainer the statutory language is, the more 

convincing the evidence of contrary legislative purpose or intent must be.”17 

We conclude that Medicaid estate recovery claims arise before death for 

purposes of the probate code’s filing deadline. This conclusion is supported by 

statutory text, the underlying legislative purpose of the Medicaid estate recovery statute, 

and the weight of precedent from other jurisdictions. 

A.	 Statutory Text Suggests That Medicaid Estate Recovery Claims Arise 

Before A Beneficiary’s Death Even Though They Cannot Be Enforced 

Until After Death. 

The estates emphasize the text of the estate recovery statute. They argue 

that because the State may bring a Medicaid estate recovery claim only “after an 

individual’s death” and only against the deceased individual’s estate,18 the State’s claim 

for reimbursement arises “at or after” the individual’s death.19 The State instead 

emphasizes the text of the probate code. It points out that the probate code refers to 

when claims “arise,” rather than when they “accrue,” and recognizes that claims arising 

before death include those that are “due or to become due, absolute or contingent.”20 

Accordingly the State argues that a Medicaid estate recovery claim arises when the 

services are provided to the beneficiary, even if it is not enforceable and therefore 

remains contingent until the beneficiary’s death. The State also asserts that other 

language in the probate code suggests that claims arising “at or after” death are related 

16 McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska 

2013) (citing Peninsula Mktg. Ass’n v. State, 817 P.2d 917, 922 (Alaska 1991)). 

17 Id. (alteration in original) (quoting Gov’t Emps. Ins. Co. v. GrahamGonzalez, 107 P.3d 279, 284 (Alaska 2005)). 

18 AS 47.07.055(e) (“[A]fter an individual’s death, the individual’s estate is 

subject to a claim for reimbursement . . . .”). 

19	 AS 13.16.460(b). 

20 AS 13.16.460(a). 

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to estate administration, rather than to obligations incurred by the beneficiary while 

alive. The State’s position is ultimately more persuasive. 

The probate code’s use of “arise” rather than “accrue” does not, on its 

own, resolve the dispute. According to the State, a claim arises when the underlying 

events take place, but a claim only accrues when it is enforceable. Yet the dictionary 

does not suggest such a clear distinction between these terms.21 The Revised Fourth 

Edition of Black’s Law Dictionary, which would have been available to the legislature 

when it enacted AS 13.16.460, states that “[a] cause of action ‘accrues’ when a suit may 

be maintained thereon” or “[w]henever one person may sue another.”22 The entry for 

“arise” notes that the term is not a synonym for “accrue.”23 It defines “arise” as “[t]o 

spring up, originate, to come into being or notice, to become operative, sensible, visible, 

or audible; to present itself.”24 This definition tends to support the State’s position, as 

the Medicaid estate recovery claim “came into being” or “originated” with the provision 

of Medicaid services. But Black’s Law Dictionary also states that a cause of action or 

suit “ ‘arises,’ so as to start running of limitation, when a party has a right to apply to 

the proper tribunal for relief.”25 Because AS 13.16.460 is a statute of limitation, this 

second definition of “arise” is more on-point and therefore tends to support the estates’ 

position. 

21 “In the absence of a [statutory] definition, we construe statutory terms 

according to their common meaning[;] [d]ictionaries provide a useful starting point for 

this exercise.” State v. Recall Dunleavy, 491 P.3d 343, 359 (Alaska 2021) (alterations 

in original) (quoting Alaska Pub. Def. Agency v. Superior Ct., 450 P.3d 246, 253 

(Alaska 2019)). 

22 Accrue, BLACK’S LAW DICTIONARY (4th ed. 1968). 

23 Arise, BLACK’S LAW DICTIONARY (4th ed. 1968). 

24 Id. 

25 Id. 

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However, the legislature’s decision to explain that a claim may arise 

whether it is “due or to become due” and whether “absolute or contingent” favors the 

State’s position.26 These qualifiers suggest that the legislature meant that a claim might 

arise even before the claimant could enforce it. A “contingent claim” is, according to 

Black’s, “[o]ne which has not accrued and which is dependent on some future event 

that may never happen.”27 This language supports the conclusion that a claim may 

“arise” before it becomes enforceable. A Medicaid estate recovery claim, though 

contingent and unenforceable before the beneficiary’s death and the death of a surviving 

spouse, can therefore fall in the category of claims arising before death. 

The probate code’s definition of “claim” reinforces the conclusion that 

Medicaid estate recovery claims arise before death for purposes of 

AS 13.16.460(a)(1)’s filing deadline. The probate code defines “claims” in a way that 

mirrors AS 13.16.460’s distinction between claims arising before death and claims 

arising “at or after” death.28 “ ‘[C]laims,’ in respect to estates of decedents,” include 

both “liabilities of the decedent . . . , whether arising in contract, in tort, or another way, 

and liabilities of the estate that arise at or after the death of the decedent . . . , including 

funeral expenses and expenses of administration.”29 A Medicaid estate recovery claim 

is akin to a contract claim: in exchange for receiving services, the beneficiay incurs a 

contingent obligation to repay after death, with funds from the beneficiary’s estate. It 

26 AS 13.16.460(a)(1) (emphasis added). These qualifiers are used both for 

claims that arose before death under AS 13.16.460(a)(1) and for claims that arise at or 

after death under AS 13.16.460(b)(1). 

27 Contingent Claim, BLACK’S LAW DICTIONARY (4th ed. 1968). 

28 AS 13.06.050 (providing definitions for AS 13.06–.36, “[s]ubject to 

additional definitions contained in AS 13.06–AS 13.36 that are applicable to specific 

provisions of AS 13.06–AS 13.36”). 

29 Id. (emphasis added). 

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is far less similar to “funeral expenses and expenses of administration,” the kinds of 

claims the statute offers as examples of claims arising at or after death.30 

Secondary sources support this distinction and confirm that Medicaid 

estate recovery claims fall in the category of claims arising before death for probate 

purposes. Richard Wellman’s Uniform Probate Code Practice Manual, which we have 

found useful in the past,31 explains that claims that “arise at or after death” are 

“commonly classified as expenses of administration.”32 The Stein on Probate treatise 

agrees, explaining that “[b]ecause claims arising after death usually originate from acts 

by the personal representative, they occur primarily during administration.”33 

The Stein treatise illustrates the distinction between claims arising before 

death and claims arising after death with helpful examples.

34 Before-death claims 

include “last illness charges, charges for illness during the year immediately preceding 

death, personal service charges during lifetime, recovery on warranties, liability as a 

surety or guarantor, claims of the state or county for support in state or county mental 

institutions, equitable claims, and other general contract claims.”35 Claims that arise 

after death include “accountants’ fees, representative’s and attorneys’ fees, repair and 

maintenance expenses of property of the estate, insurance premiums, storage costs, 

30 AS 13.06.050(6). 

31 See In re Est. of Baker, 386 P.3d 1228, 1234 (Alaska 2016) 

(acknowledging that “members of the Alaska House Judiciary Committee found 

Richard Wellman’s writings on the Uniform Probate Code to be helpful in clarifying 

the concepts underlying the code,” and citing to Richard Wellman’s Uniform Probate 

Code Practice Manual). 

32 1 UNIFORM PROBATE CODE PRACTICE MANUAL 343 (Richard V. 

Wellman, ed., 2d ed. 1977). 

33 1 STEIN ON PROBATE, § 6.01(c), at 117 (Robert A. Stein, ed., 3d ed. 1995). 

34 Id. 

35 Id. 

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platting costs, and charges for all services rendered to the personal representative for 

the estate.”36 Medicaid estate recovery claims, which are based on healthcare costs 

incurred prior to a recipient’s death rather than estate administration expenses, are 

similar to the kinds of claims that the treatise describes as claims arising before death. 

B.	 Classifying Medicaid Estate Recovery Claims As Claims Arising 

Before Death Is More Consistent With Legislative Purpose. 

The parties argue that their respective interpretations are more consistent 

with the purposes underlying the probate code and the Medicaid statutes. The estates 

argue that classifying Medicaid estate recovery claims as claims arising at or after death 

will cause the claims to be asserted earlier, furthering the goal of speedier estate 

administration. The State does not agree that classifying probate claims this way will 

necessarily expedite probate administration. It also argues that subjecting Medicaid 

estate recovery claims to a potentially more restrictive filing deadline is inconsistent 

with the priority the Legislature has assigned these claims vis-à-vis the claims of other 

creditors.37 Again we find the State’s arguments on these points more persuasive. 

Alaska’s probate statutes are intended to “promote a speedy and efficient 

system for liquidating the estate of the decedent”38 and “facilitate the prompt settlement 

of estates,”39 among other purposes. Abad’s estate contends that treating Medicaid 

estate recovery claims as arising at or after death would expedite probate administration. 

Generally, the decedent’s heirs and creditors have up to three years after death to open 

a probate proceeding.40 The estates argue that if the State’s claim arises “at or after” 

36 Id. 

37 See AS 13.16.470(a); AS 47.07.055(g). 

38 AS 13.06.010(b)(3). 

39 AS 13.16.005. 

40 AS 13.16.040(a). But see AS 12.16.040(a)(1)-(5) (providing exceptions to 

the general rule). 

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death, then its claim will expire unless filed within four months after death.41 If by that 

time no one has stepped forward to administer the decedent’s estate, then the State will 

be forced to seek appointment as the personal representative of the estate in order to 

preserve its claim.42 Accordingly, the estates argue, the probate process will unfold 

more quickly, which is more consistent with the goal of the probate code. 

Though the estates’ theory may be correct in some cases, it is not 

universally true. In other cases treating Medicaid estate recovery claims as arising at 

or after death could prolong estate administration. For example, a claim cannot be made 

against the decedent’s estate if there is a surviving spouse or child under 21.43 If a 

Medicaid estate recovery claim does not arise until it becomes enforceable, then the 

claim could arise several years after the beneficiary’s death, upon the death of the 

surviving spouse or the 21st birthday of a child. If the estate were still in the process of 

probate, the State would have four more months from that point to present its claim, 

even if all other creditors’ claims had been filed long ago. For that reason classifying 

Medicaid estate recovery claims as arising at or after death does not necessarily mean 

that the probate process will unfold more quickly. The uncertain and marginal effect 

on the speed of probate administration is not a persuasive reason to interpret Medicaid 

estate recovery claims as arising at or after death when the statutory text clearly places 

them in the category of claims arising before death. 

The State argues that classifying Medicaid estate recovery claims as 

arising before death furthers the underlying purpose of estate recovery: “recovering 

from those with an ability to pay so as to make future funds available for those having 

41 See AS 13.16.460(b). 

42 See AS 13.16.065(a) (establishing order of priority for personal 

representative of estate, with creditor lowest priority). 

43 See 42 U.S.C. § 1396p(b)(2); AS 47.07.055(f). 

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the most need.”44 Abad’s estate essentially argues that federal legislative intent is 

irrelevant because the Alaska legislature passed AS 47.07.055 to comply with federal 

requirements and access federal Medicaid funding — not necessarily to recover costs. 

But in order to access federal funding, Alaska needed a program that effectuates the 

federal act.

45 We must assume that legislature’s purpose was consistent with that of the 

federal law it implemented. 

Interpreting Medicaid estate recovery claims as arising at or after death 

would undermine this legislative purpose by making it more expensive to pursue estate 

recovery. It is true, as the estates point out, that the State could prevent its claim from 

expiring four months after death by applying to be the personal representative within 

that time. But doing so would require the State to incur additional costs in administering 

44 Est. of Melby v. Lohman, 841 N.W.2d 867, 875-76 (Iowa 2014) (“Our 

interpretation creating the debt immediately upon provision of assistance rather than at 

the death of the recipient, and allowing recovery from the corpus of the trust, is 

consistent with the Medicaid program’s goal . . . .”); see also Belshe v. Hope, 38 Cal. 

Rptr. 2d 917, 925 (Cal. App. 1995) (explaining that Medicaid estate recovery “furthers 

the broad purpose of providing for the medical care of [a state’s] needy; the greater 

amount recovered by the state allows the state to have more funds to provide future 

services”); Jon M. Zieger, The State Giveth and the State Taketh Away: In Pursuit of a 

Practical Approach to Medicaid Estate Recovery, 5 ELDER L.J. 359, 374 (1997) (“The 

foremost consideration behind estate recovery is the reduction of the overall cost of 

Medicaid to states by recouping some portion of Medicaid expenditures.”). 

45 See ch. 102, § 1, SLA 1994 (stating that purpose of the act was to, among 

other things, “bring the state into compliance with federal law with respect to the 

recovery of Medicaid payments from the estates and trusts of individuals under certain 

circumstances”); Sen. Steve Frank, Sponsor Statement for S.B. 366, 18th Leg. 2d Sess. 

(Mar. 26, 1994) (“In large part, the statutory changes proposed in this bill relating to 

. . . estate recoveries by Medicaid, and Medicaid-qualifying trusts are required by the 

federal Omnibus Budget Reconciliation Act of 1993 . . . , and DHSS will face a penalty 

— loss of federal financial Medicaid participation — if legislation is not adopted by 

July 1, 1994.”); 42 U.S.C. § 1396p(b)(1)(B) (“In the case of an individual who was 55 

years of age or older when the individual received such medical assistance, the State 

shall seek adjustment or recovery from the individual’s estate . . . .”). 

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the decedent’s estate. These additional costs would diminish the State’s net recovery, 

undermining the goal of recovering funds to be made available for other needy people. 

Classifying Medicaid estate recovery claims as arising at or after death 

would also subject the State to a risk of nonrecovery not faced by other creditors. One 

reason creditors whose claims arise before death are given four months from the date 

on which the estate publishes notice to creditors is that these creditors may not be aware 

that the person who owes them money has died: 

It is foreseeable that holders of [pre-death] contractual 

claims may be unaware of the death of the decedent and thus 

could lose their right to assert their claim due to no fault of 

their own, unless notice is given to them . . . . On the other 

hand, individuals with claims arising after death, largely due 

to expenses arising out of the administration of the estate, do 

not encounter similar difficulties. Because [the latter group 

of creditors] know[s] of the death of the decedent, [the state 

probate statute] does not require notice and sets forth only a 

four-month limitation period from the time the claim 

arose.[46] 

The State concedes that administrative processes make it more likely than other 

creditors to learn of a Medicaid beneficiary’s death. But if Medicaid is not providing 

services to the beneficiary at the time of death, it may not immediately become aware 

of the death. Applying the deadline for claims arising at or after death risks precluding 

the State from pursuing legitimate claims when other creditors still can, with no clear 

policy justification. 

Subjecting the State to these costs and risks would be directly at odds with 

the legislature’s decision to give Medicaid estate recovery claims priority over other 

creditors’ claims. The legislature designated Medicaid estate recovery claims as “debts 

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46 In re Est. of Hadaway, 668 N.W.2d 920, 924 (Minn. App. 2003). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

with preference.”47 An estate is required to pay such debts before “all other claims” — 

excluding estate administration, funeral expenses, and a few other debt categories.48 

Creditors whose claims are based on obligations incurred by the decedent while alive 

(like doctors, lenders, or business partners) are subject to the deadline for claims arising 

before death: four months after notice to creditors is published, or three years after 

death if no notice is published.49 Medicaid estate recovery claims are also based on 

obligations incurred by the decedent while alive. Making these claims subject to a 

different and sometimes more restrictive deadline (four months after death if the 

decedent had no surviving spouse or qualifying child) than other creditors’ claims 

would be inconsistent with the legislature’s decision to give Medicaid claims priority. 

In light of the overall purpose of Medicaid estate recovery claims and the 

express priority these claims are assigned, it is more logical to classify these claims as 

arising before death. 

C.	 Decisions From Other States Support The Conclusion That Medicaid 

Estate Recovery Claims Arise Before Death. 

The parties cite opinions from other state appellate courts supporting their 

respective positions on whether a Medicaid estate recovery claim arises before or after 

death. These opinions fall into three sets: (1) opinions deciding when claims that 

become enforceable after death arise for purposes of the probate code; (2) opinions 

deciding when Medicaid estate recovery claims arise generally; and (3) opinions 

deciding when Medicaid estate recovery claims arise for purposes of probate filing 

deadlines. On balance, these decisions support the conclusion that Medicaid estate 

recovery claims arise before death for purposes of probate claim deadlines. 

47 AS 47.07.055(g) (“For purposes of AS 13.16.470, the claims authorized 

under this section are debts with preference under the laws of the state.”). 

48 AS 13.16.470(a). 

49 AS 13.16.460(a)(1)-(2). 

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 The first set of decisions establishes that, generally speaking, claims 

against an estate can arise before death even if they are only enforceable after death. In 

In re Estate of Hadaway, a Minnesota court discussed a claim based on a divorce 

settlement agreement that the decedent had entered into during his life, but that was 

payable only after he died.50 The court concluded that the claim for payment arose 

during the decedent’s life for the purpose of Minnesota’s probate claim deadlines,

51 

which are similar to Alaska’s.

52 “Simply because the payment was made absolute when 

decedent died,” the court held, “it does not follow that the contractual duty necessarily 

arose at the time of decedent’s death. Rather, it is apparent that from the time of the 

settlement agreement . . . decedent was obligated [to fulfill his contract obligations].”53 

 Estate of Evitt v. Hiatt also concerned a divorce settlement agreement 

executed years before death but not enforceable until after death.

54 The Arizona Court 

of Appeals, applying Arizona’s probate code,55 held “that when a person enters into a 

contract obligating him to act while living to ensure a payment to the claimant at or 

after his death, a claim for breach arises before the decedent’s death.”56 And Ader v. 

50 668 N.W.2d at 920-21. 

51 Id. at 923. 

52 Minnesota Statutes §§ 524.3–803(a) and (b)(2), like AS 13.16.460(a) and 

(b)(2), require creditors whose claims against an estate “arose before the death of the 

decedent” to file within four months after a notice to creditors and claims that “arise at 

or after the death of the decedent” to be filed within four months after they arise. 

53 In re Est. of Hadaway, 668 N.W.2d at 923 (emphasis in original). 

54 429 P.3d 1146, 1147-48 (Ariz. App. 2018). 

55 Ariz. Rev. Stat. Ann. § 14-3803 likewise assigns a different filing deadline 

to creditors whose claims arose “before the death of the decedent” than to those whose 

claims “arise at or after the death of the decedent.” 

56 Est. of Evitt, 429 P.3d at 1147; see also Spohr v. Berryman, 589 So. 2d 

225, 227-28 (Fla. 1991) (holding that a claim against the decedent’s estate based on a 

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Estate of Felger distinguished the terms “accrue” and “arise” when extending this logic 

to fraud claims.57 While “[a] cause of action accrues . . . when one party is able to sue 

another,” the Felger court explained, “in the context of a nonclaim statute, ‘arise’ refers 

to the decedent’s act or conduct upon which a claim is based.”58 

These cases support the idea that when a claim arises, for purposes of the 

probate code’s claim filing deadlines, depends on the timing of the events that give rise 

to the claim, rather than when that claim becomes enforceable. 

The second set of decisions addresses the distinct but related issue of when 

a claim for Medicaid estate recovery arises in general.

59 Most of these decisions support 

the State’s view that Medicaid reimbursement claims arise when caretakers provide 

services rather than when a recipient passes away. 

Most jurisdictions that have addressed the issue have concluded that 

Medicaid estate recovery claims arise when caretakers provide services to a living 

Medicaid recipient. In Estate of Melby v. Lohman, for example, the Iowa Supreme 

divorce agreement “arose before the death of the decedent” because the claim “was 

based upon an agreement which was made many years before [the decedent’s] death”). 

57 375 P.3d 97, 103-04 (Ariz. App. 2016). 

58 Id. at 104 (quoting Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of 

Am., 898 P.2d 964, 966 (Ariz. 1995)). 

59 Two cases the estates cite — In re Est. of Baker, 627 S.W.3d 523 (Tex. 

App. 2021) and In re Est. of Hutchinson, 577 P.2d 1074 (Alaska 1978) — are 

inapposite. In re Est. of Baker distinguishes two kinds of claims: (1) an equitable right 

of reimbursement arising from the dissolution of marriage and (2) a debt to one’s 

spouse. See 627 S.W.3d at 532. It does not discuss “reimbursement” in the Medicaid 

recovery context. Id. at 527 (“The right of reimbursement is not an interest in property 

or an enforceable debt, per se, but an equitable right which arises upon dissolution of 

the marriage.”). In re Est. of Hutchinson examines whether family allowances qualify 

as claims against an estate. 577 P.2d at 1074-76. It is unclear that there is any 

connection to the matter at hand, other than a mere reference to the definition of 

“claims” and the claim priority statute, AS 13.16.470(a). Id. 

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Court concluded that although the governing statute “mandat[es] the department will 

refrain from collecting that debt until the death of the recipient,” it nonetheless 

“establishes a debt owed by the recipient of medical services when the services are 

provided.”60 Courts reached the same conclusion in Arkansas, Nebraska, and 

Washington.61 

Only one state, California, appears to have reached the opposite 

conclusion outside of the probate claim deadline context. The holding of Kizer v. 

Hanna — that California’s Medicaid recovery statute applied to care that took place 

60 841 N.W.2d 867, 877 (Iowa 2014). Abad’s estate attempts to distinguish 

Iowa’s Medicaid recovery statute from Alaska’s, pointing out that the Iowa statute 

conceptualizes Medicaid recovery as debt collection rather than reimbursement. 

Compare Iowa Code § 249A.53(2) (formerly Iowa Code § 249A.5(2)) (“The provision 

of medical assistance to an individual . . . creates a debt due the department from the 

individual’s estate . . . .”), with AS 47.07.055(e) (“[T]he individual’s estate is subject to 

a claim for reimbursement for medical assistance payments . . . .”). But the slightly 

different language used does not seem to indicate a different underlying legislative 

intent. The two statutes arise from the same federal mandate to implement state 

Medicaid recovery programs, and therefore share the same purpose. See Est. of Melby, 

841 N.W. at 875-76 (“Our interpretation creating the debt immediately upon provision 

of assistance rather than at the death of the recipient, and allowing recovery from the 

corpus of the trust, is consistent with the Medicaid program’s goal of recovering from 

those with an ability to pay so as to make future funds available for those having the 

most need.”). 

61 See, e.g., Est. of Wood v. Ark. Dep’t of Hum. Servs., 894 S.W.2d 573, 576 

(Ark. 1995) (explaining that the relationship created by Arkansas’s estate recovery 

statute “was as if [the recipient] had a loan from [the department] to be repaid from the 

assets of her estate”); Est. of Reimers v. Neb. Dep’t of Health & Hum. Servs., 746 

N.W.2d 724, 728 (Neb. 2008) (“While the debt arising under [the estate recovery] 

statute accrues during the recipient’s lifetime, it is held in abeyance for payment until 

the recipient’s death.”); In re Est. of Burns, 928 P.2d 1094, 1099 (Wash. 1997) (“The 

precipitating event [of a Medicaid reimbursement claim] is . . . the receipt of the 

benefits giving rise to the contingent indebtedness, and not the creation of the 

decedent’s estate.”). 

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before the statute went into effect62 — is irrelevant here. But the Kizer court reached 

that conclusion by reasoning that “[t]he plain language of the statute dictates that the 

[state agency’s] right to reimbursement is against the recipient’s estate. Consequently, 

the [state agency’s] right to reimbursement arises, if at all, at the time of the recipient’s 

death.”63 

The third set of decisions addresses the precise question at hand: For 

purposes of probate code filing deadlines, do Medicaid estate recovery claims arise 

before death, or “at or after” death? These two opinions — Estate of Hooey v. 

Mowbray64 and Estate of Tvrz v. Tvrz65 — reached opposite conclusions. 

In Estate of Hooey the Supreme Court of North Dakota held that “[t]he 

requirement that the [state agency] refrain from pursuing its claim until after the death 

of the recipient does not define when that claim arose.”66 Rather, the court viewed this 

requirement as one of several contingencies that must occur before the government may 

62 767 P.2d 679, 686 (Cal. 1989). 

63 Id. at 683 (emphasis in original). Boatner’s estate cites to another 

California decision, Maxwell-Jolly v. Martin, for the proposition that the reimbursement 

right is strictly a statutory right to recover from a decedent recipient’s estate and is not 

based on any promise or agreement to repay by the still-living recipient. 129 Cal. Rptr. 

3d 278 (Cal. App. 2011). The Maxwell-Jolly court relied on the California Supreme 

Court’s reasoning in Kizer in reaching that conclusion. Id. at 288. But the majority of 

jurisdictions have taken the opposite approach, and we find the reasoning of those 

courts more persuasive. 

64 521 N.W.2d 85 (N.D. 1994). 

65 620 N.W.2d 757 (Neb. 2001), superseded by statute, 2001 Neb. Laws, 

L.B. 257, § 1, Neb. Rev. Stat. § 68–1036.02(2) (2001), as recognized in Est. of Cushing 

v. Neb. Dep’t of Health & Hum. Servs., 810 N.W.2d 741, 745 (Neb. 2012) (“In re Estate 

of Tvrz is no longer authoritative on when DHHS’ claim arises.”). 

66 521 N.W.2d at 86 (citations omitted). 

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recover Medicaid funds.67 The court reasoned that “the obligation to repay, if any, 

arises upon receipt of the benefits, i.e., prior to the decedent’s death,” whereas the 

decedent’s death and the death of any surviving spouse merely determined when the 

government’s “right to recover ripens.”68 

In Estate of Tvrz the Supreme Court of Nebraska adopted the opposite 

interpretation of Nebraska’s Medicaid estate recovery statute.69 That court deemed it 

significant that Nebraska’s statute “specifically provide[d] that ‘[n]o debt to the 

department shall exist’ if the recipient is survived by a spouse or by a child who is under 

the age of 21, blind, or totally and permanently disabled.”70 The court reasoned that 

“the existence of indebtedness on the part of a [Nebraska] recipient’s estate depends 

upon factors which can be determined only after the recipient’s death” and that a 

Nebraska Medicaid estate recovery claim therefore arises only at or after death.71 

Despite this seemingly even tally, the scale ultimately tips in the State’s 

favor. One year after the Estate of Tvrz decision, the Nebraska legislature effectively 

abrogated it by amending Nebraska’s Medicaid estate recovery statute to provide that 

the debt “arises during the life of the recipient but shall be held in abeyance until death 

of the recipient.”72 The Nebraska legislature’s response to the court’s ruling suggests 

67 See id. at 86-87 (quoting Dep’t of Pub. Welfare v. Anderson, 384 N.E.2d 

628, 633-34 (Mass. 1979)). 

68 Id. at 87 (quoting Anderson, 384 N.E.2d at 633-34). 

69 620 N.W.2d at 762-63. 

70 Id. (quoting former Neb. Rev. Stat. § 68–1036.02(2)). 

71 Id. at 763 (emphasis in original). 

72 Est. of Cushing v. Neb. Dep’t of Health & Hum. Servs., 810 N.W.2d at 

745-46 (quoting Neb. Rev. Stat. § 68–919) (holding, in light of statutory change, that 

Medicaid estate recovery claim arose before beneficiary’s death). 

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that subjecting Medicaid estate recovery claims to the “before death” probate claim 

deadline is more consistent with the underlying purpose of the program. 

 Overall, the decisions from other jurisdictions confirm our analysis of the 

text and purpose of Alaska’s probate and Medicaid statutes. A Medicaid estate recovery 

claim arises before the death of the decedent. Such a claim is timely if presented to the 

estate within four months after notice to creditors is first published, or within three years 

of death if no notice is published. 

CONCLUSION 

 For the reasons above, we REVERSE the superior court’s decision in 

Estate of Abad and AFFIRM the superior court’s decision in Estate of Boatner. 

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