Nonprofit Corporation Merger Approval and Filing Requirements in South Carolina

At a glance

Requirements one by one

Governing law and eligible merger parties

Section 33-31-1101(a) permits a nonprofit corporation to merge with a nonprofit or business corporation, LLC, partnership, or limited partnership. Under § 33-31-1106(a), foreign business or nonprofit corporations may participate if their law permits and the domestic nonprofit follows Article 11. The special limits for a public benefit or religious corporation in § 33-31-1102 may determine the survivor.

Plan and treatment of membership interests

Under § 33-31-1101(b)–(c), the plan identifies parties and survivor, terms, and treatment of memberships. For a public benefit or religious corporation, it gives the basis for converting members into survivor members; for a mutual benefit corporation, the plan may use obligations, securities, cash, or other property. It may include changes to the survivor's articles or bylaws.

Board action and recommendation

Section 33-31-1103(a) requires board approval. Its approval list does not add a separate recommendation step, but it requires written approval from a person whose approval the articles require under § 33-31-1030. A corporation without voting members follows the express board-majority route below.

Member vote and voting groups

Under § 33-31-1103(a), members approve by two-thirds of votes cast or a majority of the voting power, whichever is less, unless a higher vote or class voting applies. Section 33-31-1103(e) requires a separate class vote if a plan provision would trigger one for an articles or bylaw amendment. A plan that ends all memberships or a class has an additional rule; see the notice trap below (§ 33-31-1103(g)).

Member notice, plan, and consent

Section 33-31-1103(c) requires member-meeting notice with the merger purpose and a plan copy or summary. Members of the survivor must see provisions that would give them an amendment vote; members of the disappearing corporation must see the postmerger articles and bylaws. The general fair-and-reasonable safe harbor in § 33-31-705(c) uses 10–60 days, or at least 30 days for mail other than first-class or registered. Under § 33-31-1103(d), written-consent or ballot solicitations carry the same plan and document materials.

No voting members

If there are no members or no members entitled to vote, § 33-31-1103(b) requires approval by a majority of directors in office. The meeting notice must identify the proposed merger. For a corporation with no members at all, § 33-31-822(c) requires seven days' written notice of that board vote, unless waived. The literal seven-day clause addresses corporations without members; the merger section also covers corporations with nonvoting members.

Charitable assets and state review

Without prior approval from the Richland County court of common pleas in a proceeding with written Attorney General notice, § 33-31-1102(a) restricts a public benefit or religious corporation to the listed merger routes. These include a public benefit/religious survivor, a qualifying foreign survivor, or a business/mutual benefit party with a continuing public benefit/religious survivor. Another route requires a specified fair-value asset transfer and an independent-director majority; § 33-31-1102(b) adds at least 20 days' advance Attorney General notice for that route. Section 33-31-1102(c) restricts what members of the public benefit or religious corporation may receive from the merger.

Public filing and effective time

The surviving corporation files articles of merger under § 33-31-1104. They contain the plan, director or member approval statements and class vote tallies when required, and any required third-person approval statement. Filing takes effect unless the articles state a later date; § 33-31-123(b) caps the delay at 90 days.

Changes, abandonment, and simplified routes

A changed proposal must still meet the plan and approval requirements in §§ 33-31-1101 and 33-31-1103. Section 33-31-1103(f) permits abandonment after adoption but before articles are filed, under the plan's procedure or, if absent, as the board determines, subject to contract rights. Article 11 sets the plan and approval requirements for ordinary nonprofit mergers in §§ 33-31-1101–1103.

What trips people up

Under § 33-31-1103(g), a plan ending all memberships or a class has a distinct process. For mutual benefit corporations, the board gives advance notice of the general nature; the member notice may have to include an opposing statement of up to 500 words submitted by five members or holders of 3% of voting power within 20 days after the board's submission vote. This special plan needs two-thirds of votes cast by each class.

Common questions

Can a foreign corporation be the survivor? Section 33-31-1106(a) permits it if its law allows the merger and it follows § 33-31-1104; subsection (b) makes the Secretary of State its service-of-process agent when the merger takes effect.

Does a donor's gift to a constituent fail after it merges? Under § 33-31-1107, a gift payable after the merger ordinarily goes to the survivor unless the donor's instrument specifically provides otherwise.

What happens to conditions attached to transferred property? Under § 33-31-1105(2), the merger vests property in the survivor subject to the conditions that applied before the merger.

Statutes and sources

• South Carolina Code Title 33, Chapter 31, §§ 33-31-1101–1107, -705, -822, and -123, official current text accessed October 3, 2026. The verbatim provisions are quoted in the statute entries above.