concurring in part and dissenting in part.
[¶ 17] I respectfully concur in parts I, II, and IV of the majority opinion and dissent from part III of the majority opinion.
[¶ 18] The majority opinion concludes in part III that N.D.C.C. § 50-24.1-07(1) limits the amount of funeral expenses which can be approved for Mary Ann Fisk to $3,000. I agree Mary Ann Fisk’s funeral expenses, which can be paid out of her estate, are limited to $3,000 because, under the facts of this case, all of the assets in her estate came from her husband Raymond Fisk. I arrive at that conclusion, however, under a different interpretation of the statute than the majority opinion.
[¶ 19] I am of the opinion that N.D.C.C. § 50-24.1-07(1) is ambiguous. The statute can be read to limit not only the medical assistance recipient’s claim for funeral expenses to $3,000, but also the medical assistance recipient’s spouse’s claim for funeral expenses. The statute can also be read to place only a timing restriction on when the Department can recover the amount of medical assistance benefits it has paid, which would be on the death of the spouse of the deceased recipi*618ent. However, the interpretation of N.D.C.C. § 50-24.1-07(1) must include consideration of the entire statute. See Estate of Thompson, 1998 ND 226, ¶ 7, 586 N.W.2d 847 (“We construe statutes as a whole to give effect to each of its provisions, whenever fairly possible.”). Subsection 2, N.D.C.C. § 50-24.1-07, states that “[a] claim may not be required to be paid nor may interest begin to accrue during the lifetime of the decedent’s surviving spouse, if any, ...” If the timing of the Department’s claim was governed by subsection 1, N.D.C.C. § 50-24.1-07, there would be no need for subsection 2. Consequently, that proffered interpretation of subsection 1 is not persuasive. Subsection 5, N.D.C.C. § 50-24.1-07, states:
All assets in the decedent’s estate of the spouse of a deceased medical assistance recipient are presumed to be assets in which that recipient had an interest at the time of the recipient’s death.
This subsection states there is a presumption that, at the death of the recipient’s spouse, the recipient had “an interest” in all assets in the recipient’s spouse’s estate. The statute does not state that the recipient’s interest is presumed to be a one hundred percent ownership and, therefore, it must be determined what “interest” the recipient had at the time of the recipient’s death. In Estate of Thompson, our Court concluded that the Department had the power to recover against the recipient’s spouse’s estate, but only against the recipient’s assets that were conveyed through joint tenancy and other forms of survivor-ship, or other assets in which the recipient had any legally cognizable title or interest at the time of death. 1998 ND 226, ¶¶ 12, 14-15, 586 N.W.2d 847. In Estate of Wirtz, our Court held that any assets conveyed by the medical assistance recipient to the spouse and traceable to her estate are subject to the Department’s recovery claim. 2000 ND 59, ¶ 14, 607 N.W.2d 882. “However, the recoverable assets do not include all property ever held by either party during the marriage” and
42 U.S.C. § 1396p(b) contemplates only that assets in which the deceased recipient once held an interest will be traced. It does not provide that separately-owned assets in the survivor’s estate, or assets in which the deceased recipient never held an interest, are subject to the department’s claim for recovery. Thus, recovery from a surviving spouse’s separately-owned assets ... or recovery from the surviving spouse’s entire estate, including assets not traceable from the recipient, is not allowed.
Id. (citation omitted.)
[¶ 20] Therefore, the recipient’s spouse’s estate could include both assets in which the recipient had an interest at his death and assets in which the recipient never held an interest. I interpret N.D.C.C. § 50-24.1-07(1) to list preferred claims against those assets in the recipient’s spouse’s estate in which the recipient had an interest, but only to the extent of that interest. If the recipient’s spouse died with assets in which the recipient had no interest or assets that were wholly owned by the recipient’s spouse, the preferred claims against those assets would be governed by N.D.C.C. § 30.1-19-05.
[¶ 21] In this case, Ráymond Fisk is presumed to have an interest in all of the assets in Mary Ann Fisk’s estate. See N.D.C.C. § 50-24.1-07(5). The Department filed a claim against the estate. The personal representative disallowed the claim, and contended that the Department’s “recovery is limited to the traceable assets in which Raymond A. Fisk had an interest in.” The Department filed a petition for allowance of the claim. Subsequently, the personal representative filed an amended notice of disallowance of claim *619which allowed the Department’s claim against the estate for medical assistance issued on behalf of Raymond A. Fisk in the total amount of $56,312.35, but disallowing interest. The district court entered an order declaring the estate insolvent and ordering payment of $29,565.70 to the Department for its claim for recovery of medical assistance benefits. The personal representative claims there is a clerical mistake in the amount to be paid to the Department, and it should be corrected to $28,409.09. The Department has not disputed this.
[¶ 22] The issues appealed by the Department included whether the district court erred in allowing payment of $6,206.25 for funeral expenses of the recipient’s spouse instead of limiting the funeral expenses to $3,000. The personal representative took the position that the statute, N.D.C.C. § 50-24.1-07(1), should be interpreted to only apply to the deceased recipient’s funeral expenses and not to the recipient’s spouse’s funeral expenses. The personal representative never argued or raised an issue claiming that Mary Ann Fisk had any interest separate and independent of her husband’s in the assets of her estate. Mary Ann Fisk, on this record, never claimed she owned a share of the proceeds from the sale of the house. The personal representative waived any claim that any of the assets of Mary Ann Fisk’s estate were hers alone. I am of the opinion that if the estate of Mary Ann Fisk had assets that were wholly owned by her and Raymond Fisk had no traceable interest in them at the time of his death, her funeral expenses above $3,000 could be approved for payment from those assets. I would reverse the district court’s allowance of all the funeral expenses and hold that, on this record, the limit of $3,000 applies, and I would remand for the court to enter an amended order, including correcting any clerical mistake in the amount ordered to be paid to the Department. I would affirm the district court’s order in all other respects.
[¶ 23] GERALD W. VANDE WALLE, C.J., concur.