[WSBAPT] Statute of Limitations on DSHS Medicaid Lien

Tue Feb 9 12:52:52 PST 2021

I have a couple of related scenario questions involving DSHS estate
recovery actions -- I'd welcome any input!

*Scenario 1. Both spouses deceased.*  Wife and husband had a complicated
marriage, but never were never officially divorced or legally separated by
the court before wife died in 2014.  They signed a "Separation Agreement"
in 1976, but in the document they agreed that all of their property would
remain community property, including later acquired property, and that they
would remain legally married.   In 1988, wife quitclaimed to husband her
share of husband's residence.  Wife also had a residence, which she sold at
some point before she died.  In 1994, wife filed for dissolution, but case
was dismissed for inaction in 1997.  Wife died in 2014, after spending 7
years in adult family home paid for by medicaid.  No probate was filed for
wife, and we don't know if notice of wife's death was ever sent to DSHS.

Husband then died in January 2020. His death certificate recited that he
was "widowed" (not divorced).

Notice of husband's death was sent to DSHS in March 2020.  We have received
nothing from DSHS, going now on close to a year.  Clients are just waiting
for the shoe to drop.

*Question*:  How do we know when/if DSHS is going to take action on this to
enforce a lien for payment of wife's care against husband's estate? When
should PR feel safe closing estate and distributing out assets? 4-month
creditor claim period is now complete.

*Scenario 2.  Husband deceased in 2009, no lien ever filed, wife still
living in residence. * DSHS client husband with several years of long term
care paid by Medicaid.  DSHS client husband dies in 2009 with a surviving
spouse who continued to live in the residence. Residence titled in husband
and wife's revocable living trust.  No probate filed for DSHS client
husband, but DSHS was (we think, based on a letter from the attorney at the
time) sent notice of husband's death.  DSHS didn't file a lien against the
home in 2009, and still hasn't.

*Question 1: * I realize that DSHS won't initiate the *estate recovery
action* until death of surviving spouse (or at least until surviving spouse
stops living in residence, such as by relocating to long term care
herself), but does that mean DSHS will also hold off on *filing a lien
until death of surviving spouse*? Wondering if the lack of any lien being
filed in 2009 means that there won't be a lien filed later, after surviving
spouse's death? Did this family get a freebie?

*Question 2*.  Since death occurred in 2009, with no lien filed, is there a
statute of limitations on DSHS ability to file a lien? Or is this always
going to be dependent on the surviving spouse's life span and date of
death?

*Question 3*.  I would guess that the general prohibition on imposing a
statute of limitation in an action brought by the State of Washington (see
RCW 4.16.160 <http://app.leg.wa.gov/RCW/default.aspx?cite=4.16.160>) means
that there is no time cut off on the state's ability to file a lien or
initiate estate recovery.  Has anyone dealt with DSHS on the application of
RCW 4.16.160 <http://app.leg.wa.gov/RCW/default.aspx?cite=4.16.160> to
estate recovery?

Thanks!

*Sarah O’Farrell McCarthy*

*(Pronouns: she / her)*Attorney | Kelly, Arndt & Walker, Attorneys at Law,
PLLP
6443 Harding Avenue | P.O. Box 290 | Clinton, WA  98236

(Located on Whidbey Island, Island County, Washington)
Phone: (360) 341-1515 | Fax: (360) 341-3272
sarah at kawlawyers.com | www.kawlawyers.com

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On Thu, Jan 28, 2021 at 6:34 AM Jeff Davis <jeff at bellanddavispllc.com>
wrote:

> Listmates:
>
>
>
> Clients mother started receiving Medicaid benefits in 2006.  DSHS filed
> lien against mom’s “unfinished” home in 2007.  Mom died in 2010.  DSHS has
> not foreclosed its lien.  Is there a statute of limitations for DSHS to
> foreclose?
>
>
>
> Jeff
>
>
>
> W. Jeff Davis, Esq.
>
> BELL & DAVIS PLLC
> P.O. Box 510
> Sequim WA 98382
> Phone No.:(360) 683.1129
> Fax No.: (360) 683.1258
> email: info at bellanddavispllc.com
> www.bellanddavispllc.com
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