Nonprofit Corporation Merger Approval and Filing Requirements in West Virginia

At a glance

Requirements one by one

Parties and plan

West Virginia Code § 31E-11-1101(a) permits a domestic nonprofit corporation to merge with another corporation or other entity, including an eligible foreign party. Subsection (b) requires that party to satisfy its own governing law. The plan names the parties and survivor, states transaction terms and membership conversion or consideration, and supplies the surviving or new entity's organizational documents (§ 31E-11-1101(c)).

Board and member approval

Each board approves the plan and ordinarily recommends it to voting members under § 31E-11-1102(a)–(b). A board that makes no recommendation because of conflicts or special circumstances must communicate its reason with the submission. Unless a greater or additional vote applies, members approve by two-thirds of votes cast, and each class entitled to vote separately uses the same two-thirds test (§ 31E-11-1102(e)–(g)). A class votes separately when a comparable articles amendment would require it.

The usual board act is a majority of directors present at a quorate meeting under § 31E-8-824(a)–(c), subject to higher governing-document requirements.

Notice and alternate member action

Section 31E-11-1102(d) requires notice to voting members stating the merger purpose and enclosing the plan or summary. Section 31E-7-705(a) supplies the 10–60-day meeting window. Under § 31E-7-704(a), all members entitled to vote may give unanimous written consent instead. The articles or bylaws may authorize a mail or electronic ballot under subsection (b).

No voting members and unchanged survivor

If a constituent has no members or no members entitled to vote on the merger, its board adopts the plan (§ 31E-11-1102(j)). The surviving corporation's members need not vote if its articles stay the same apart from permitted limited amendments and each survivor member keeps identical designations, qualifications, privileges and rights (§ 31E-11-1102(h)).

Articles, review, and effective time

The survivor delivers articles of merger to the Secretary of State with the plan itself, board-adoption statement, and member approval facts, including separate-class vote counts where required (§ 31E-11-1103(a)). The filing signer follows § 31E-1-120(d)–(e): board chair, president, or another officer signs and identifies capacity. The merger takes effect only when the Secretary of State issues a certificate (§ 31E-11-1103(b)). For an unqualified foreign survivor, subsection (c) withholds the certificate until specified tax and employment notices arrive.

Amendment and abandonment

The plan may permit amendment before articles are filed, but § 31E-11-1101(e) restricts post-member-approval changes to membership consideration, survivor documents, and materially adverse terms. After authorization, § 31E-11-1102(i) permits abandonment before filing according to the plan or a board procedure, subject to contract rights.

What trips people up

The ordinary two-thirds calculation is of votes cast, not all voting power (§ 31E-11-1102(e)). A disappearing corporation can need a greater or additional vote when an asset sale or dissolution would require one under the circumstances (§ 31E-11-1102(g)(2)). The foreign-survivor clearance in § 31E-11-1103(c) can hold up certificate issuance even after all internal votes pass.

Common questions

Does the merger require a separate deed for West Virginia real estate? Section 31E-11-1104(3) says real property passes by operation of law and calls for a confirmation deed recorded in each county where it is located.

What happens to pending litigation? Section 31E-11-1104(5) allows it to continue as though the merger had not occurred or to substitute the survivor for the disappearing corporation.

Statutes and sources

• W. Va. Code § 31E-11-1101: “(a) One or more domestic corporations may merge with a domestic or foreign corporation or other entity pursuant to a plan of merger. (b) A foreign corporation, or a domestic or foreign other entity, may be a party to the merger, or may be created by the terms of the plan of merger, only if: (1) The merger is permitted by the laws under which the corporation or other entity is organized or by which it is governed; and (2) In effecting the merger, the corporation or other entity complies with the laws under which the corporation or other entity is organized or by which it is governed and with its articles of incorporation or organizational documents. (c) The plan of merger must include: (1) The name of each corporation or other entity that will merge and the name of the corporation or other entity that will be the survivor of the merger; (2) The terms and conditions of the merger; (3) The manner and basis of converting the memberships, if any, of each merging corporation and interests of each merging entity, interests, obligations, cash, other property, or any combination of the foregoing; (4) The articles of incorporation of any corporation, or the organizational documents of any other entity, to be created by the merger, or if a new corporation or other entity is not to be created by the merger, any amendments to the survivor's articles of incorporation or organizational documents; and (5) Any other provisions required by the laws under which any party to the merger is organized or by which it is governed, or by the articles of incorporation or organizational documents of any party to the merger. (d) The terms described in subdivisions (2) and (3), subsection (c) of this section may be made dependent on facts ascertainable outside the plan of merger, provided that those facts are objectively ascertainable. The term "facts" includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation. (e) The plan of merger may also include a provision that the plan may be amended prior to filing the articles of merger with the Secretary of State: Provided, That if the members of a domestic corporation that is a party to the merger are required or permitted to vote on the plan, the plan must provide that subsequent to approval of the plan by the members the plan may not be amended to: (1) Change the manner and basis of converting the memberships, if any; (2) Change the articles of incorporation of any corporation, or the organizational documents of any other entity, that will survive or be created as a result of the merger, except for changes permitted by section one thousand five, article ten of this chapter or by comparable provisions of the laws under which the foreign corporation or other entity is organized or governed; or (3) Change any of the other terms or conditions of the plan if the change would adversely affect the members in any material respect.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-11-1102: “(a) After adopting a plan of merger, the board of directors of each corporation party to the merger shall submit the plan of merger, except as provided in subsection (h) of this section, for approval by those members who are entitled to vote on a plan of merger, if any. (b) For a plan of merger to be approved: (1) The board of directors must approve the plan of merger; (2) the board of directors must recommend the plan of merger to the members entitled to vote on the plan of merger, if any, unless the board of directors determines that because of conflicts of interest or other special circumstances it should make no recommendation and communicates the basis for its determination to the members entitled to vote on the plan of merger with the submission of the plan; and (3) the members entitled to vote on the plan must approve the plan, either before or after the actions required in subdivisions (1) and (2) of this subsection, as provided in subsection (e) of this section. (c) The board of directors may condition its submission of the proposed merger on any basis. (d) The corporation shall notify each member, entitled to vote on the plan, if any, of the proposed members' meeting in accordance with section seven hundred five, article seven of this chapter. The notice is also to state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger and contain or be accompanied by a copy or summary of the plan. (e) Unless this chapter, the articles of incorporation or the board of directors acting pursuant to subsection (c) of this section requires a greater vote or a vote by class of members, the plan of merger to be adopted must be approved by: (1) If no class of members is entitled to vote separately on the plan as a class, at least two thirds of the votes cast by the members entitled to vote; and (2) if any class of members is entitled to vote on the plan separately as a class, at least two thirds of the votes cast by the members of each class whose members are entitled to vote. (f) Separate voting by class of members is required on a plan of merger if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation, would require action by one or more separate classes of members on the proposed amendment under the articles of incorporation of the corporation. (g) Approval of the plan of merger by the corporation requires a greater or additional vote if: (1) In the case of the surviving corporation, a plan of merger contains any provision which, if contained in a proposed amendment to its articles of incorporation would require a greater vote than, or additional vote to, that otherwise required to approve the plan of merger; or (2) In the case of any terminating corporation, a sale of all or substantially all assets, or dissolution, would under the circumstances require a greater vote than, or additional vote to, that otherwise required to approve the plan of merger. (h) Action by the members of the surviving corporation on a plan of merger is not required if: (1) The articles of incorporation of the surviving corporation will not differ, except for amendments enumerated in section one thousand two, article ten of this chapter from its articles of incorporation before the merger; and (2) Each member of the surviving corporation immediately before the effective date of the merger will be a member with identical designations, qualifications, privileges and rights immediately after the merger. (i) After a merger is authorized, and at any time before the articles of merger is filed, the planned merger may be abandoned, subject to any contractual rights, without further member action, in accordance with the procedure set forth in the plan of merger or, if none is set forth, in the manner determined by the board of directors. (j) If any merging corporation has no members, or no members entitled to vote on the merger, a plan of merger is to be adopted by the board of directors.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-11-1103: “(a) After a plan of merger is approved as required by section one thousand one hundred two of this article, the surviving corporation shall deliver to the Secretary of State for filing articles of merger setting forth: (1) The plan of merger; (2) a statement to the effect that the plan of merger was adopted by the board of directors of each corporation party to the merger; (3) if member approval was not required, a statement to that effect; and (4) if approval of members of one or more corporations party to the merger was required: (A) The designation of each class of members entitled to vote separately on the plan as to each corporation; and (B) the total number of votes cast for and against the plan by each class of members entitled to vote separately on the plan as to each corporation and a statement that the number cast for the plan by each class of members was sufficient for approval by that class. (b) A merger takes effect upon issuance by the Secretary of State of a certificate of merger to the survivor corporation. (c) The Secretary of State shall withhold the issuance of any certificate of merger in the case where the new or surviving corporation will be a foreign corporation which has not qualified to conduct affairs or do or transact business or hold property in this state until the receipt by the Secretary of State of a notice from the Tax Commissioner and Bureau of Employment Programs to the effect that all taxes due from said corporation under the provisions of chapter eleven of this code, including, but not limited to, taxes withheld under the provisions of section seventy-one, article twenty-one, chapter eleven of this code, all business and occupation taxes, motor carrier and transportation privilege taxes, gasoline taxes, consumer sales taxes and any and all license franchise or other excise taxes and corporate net income taxes, and employment security payments levied or assessed against the corporation seeking to dissolve have been paid or that the payment has been provided for, or until the Secretary of State received a notice from the Tax Commissioner or Bureau of Employment Programs stating that the corporation in question is not subject to payment of any taxes or to the making of any employment security payments or assessments.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-11-1104: “When a merger takes effect: (1) Every other corporation party to the merger merges into the surviving corporation and the separate existence of every corporation except the surviving corporation ceases; (2) All property owned by, and every contract right possessed by, each corporation or other entity that merges into the survivor is vested in the survivor without reversion or impairment; (3) All real property located in the state owned by each corporation or other entity that merges into the survivor passes by operation of law and the transfer is evidenced by recording a confirmation deed in each county in which the real property is located. No transfer or excise taxes may be assessed for the recording of the confirmation deeds. (4) The surviving corporation has all liabilities of each corporation party to the merger; (5) A proceeding pending against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation whose existence ceased; (6) The articles of incorporation of the surviving corporation is amended to the extent provided in the plan of merger; (7) The memberships, if any, of each corporation party to the merger that are to be converted into memberships of the surviving corporation are converted, and the former members in the membership classes are entitled only to the designation, qualifications, privileges and rights of the class of members to which they are converted, as provided in the articles of incorporation of the surviving corporation as the articles may be amended by the plan of merger; and (8) Any devise, bequest, gift or grant, contained in any will or in any other instrument, made before or after the merger, to or for the benefit of any of the merging corporations inures to the benefit of the surviving corporation, and so far as is necessary for that purpose, the existence of each merging corporation is deemed to continue in and through the surviving or new corporation.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-7-705: “(a) A corporation is to notify members entitled to vote of the date, time and place of each annual, regular and special meeting no fewer than ten nor more than sixty days before the meeting date. Unless this chapter, or the articles of incorporation require otherwise, the corporation is required to give notice only to members entitled to vote at the meeting. (b) Unless this chapter, the articles of incorporation or bylaws require otherwise, notice of an annual or regular meeting need not include a description of the purpose or purposes for which the meeting is called, except that, unless stated in a written notice of the meeting: (1) No bylaw may be brought up for adoption, amendment or repeal; and (2) no matter, other than the election of directors at an annual meeting, may be brought up which expressly requires the vote of members. (c) Notice of a special meeting of members must include a description of the purpose or purposes for which the meeting is called. (d) If not otherwise fixed under section seven hundred three or seven hundred seven of this article, the record date for determining members entitled to notice of and to vote at an annual, regular or special meeting is the day before the first notice is delivered to members. (e) Unless the bylaws require otherwise, if an annual, regular or special meeting of members is adjourned to a different date, time or place, notice need not be given of the new date, time or place if the new date, time or place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be fixed under section seven hundred seven of this article, notice of the adjourned meeting must be given under this section to persons who are members entitled to vote as of the new record date. (f) Unless the articles of incorporation or bylaws provide otherwise, any member may participate in a regular or special meeting by any means of communication by which all members participating may simultaneously hear each other during the meeting. A member participating in a meeting by this means is deemed to be present in person at the meeting.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-8-824: “(a) Unless the articles of incorporation or bylaws require a greater number or unless otherwise specifically provided in this chapter, a quorum of a board of directors consists of: (1) A majority of the fixed number of directors if the corporation has a fixed board size; or (2) A majority of the number of directors prescribed, or if no number is prescribed the number in office immediately before the meeting begins, if the corporation has a variable-range size board. (b) The articles of incorporation or bylaws may authorize a quorum of a board of directors to consist of no fewer than one third of the fixed or prescribed number of directors determined under subsection (a) of this section. (c) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or bylaws require the vote of a greater number of directors. (d) A director who is present at a meeting of the board of directors or a committee of the board of directors when corporate action is taken is deemed to have assented to the action taken unless: (1) He or she objects at the beginning of the meeting or promptly upon his or her arrival to holding it or transacting business at the meeting; (2) his or her dissent or abstention from the action taken is entered in the minutes of the meeting; or (3) he or she delivers written notice of his or her dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-1-120: “(a) A document must satisfy the requirements of this section and any other provision of this code that adds to or varies these requirements to be entitled to filing by the Secretary of State. (b) The document to be filed must be typewritten or printed or, if electronically transmitted, it must be in a format that can be retrieved or reproduced in typewritten or printed form. (c) The document to be filed must be in the English language: Provided, That a corporate name is not required to be in the English language if it is written in English letters or Arabic or Roman numerals: Provided, however, That the certificate of existence required of foreign corporations is not required to be in the English language if it is accompanied by a reasonably authenticated English translation. (d) The document to be filed must be executed: (1) By the chairman of the board of directors of a domestic or foreign corporation, by its president or by another of its officers; (2) If directors have not been selected or the corporation has not been formed, by an incorporator; or (3) If the corporation is in the hands of a receiver, trustee or other court-appointed fiduciary, by that fiduciary. (e) The person executing the document to be filed shall sign it and state beneath or opposite his or her signature, his or her name and the capacity in which he or she signs. The document may contain a corporate seal, attestation, acknowledgment or verification. (f) The document to be filed must be delivered to the office of the Secretary of State for filing. Delivery may be made by electronic transmission as permitted by the Secretary of State. The Secretary of State may require one exact or conformed copy to be delivered with the document to be filed if the document is filed in typewritten or printed form and not transmitted electronically. (g) When a document is delivered to the office of the Secretary of State for filing, the correct filing fee and any franchise tax, license fee or penalty required by this chapter or any other provision of this code must be paid or provision for payment made in a manner permitted by the Secretary of State. (h) In the case of service of notice and process as permitted by subsection (c), section five hundred four, article five of this chapter and subsections (d) and (e), section one thousand four hundred ten, article fourteen of this chapter, the notice and process must be filed with the Secretary of State as one original, plus two copies for each person to be served or noticed.” Official section, accessed 2026-10-03.
• W. Va. Code § 31E-7-704: “(a) Any action which, under any provision of this chapter, may be taken at a meeting of members may be taken without a meeting if one or more members consents in writing, setting forth the action taken or to be taken, signed by all of the persons who would be entitled to vote upon the action at a meeting, or by their duly authorized attorneys which action for purposes of this subsection is to be referred to as "unanimous written consent". The secretary shall file the consent or consents, or certify the tabulation of the consents and file the articles, with the minutes of the meetings of the members. A unanimous written consent must have the same force and effect as a vote of the members at a meeting duly held, and may be stated as having the same force and effect as a vote of the members in any articles or document filed under this chapter. (b) Where directors or officers are to be elected by members or any other action is to be voted upon by members, the articles of incorporation or bylaws may provide that the elections may be conducted and the actions voted upon by mail or electronic means in a manner provided in the articles of incorporation or bylaws. The vote of members, or of the members of any particular class, is to be determined from the total number of members who actually vote by mail, rather than from the total number of members entitled to vote, unless the articles of incorporation otherwise provide. A ballot signed under this section has the same force and effect as a vote of the member who signed it at a meeting duly held, and may be stated as having the same force and effect in any certificate or document filed under this chapter. (c) If not otherwise fixed under section seven hundred three or seven hundred seven of this article, the record date for determining members entitled to take action without a meeting is the date the first member signs the consent or ballot under subsection (a) or (b) of this section. (d) The absence from the minutes of any indication that a member objected to holding the meeting prima facie establishes that no objection was made.” Official section, accessed 2026-10-03.