West Virginia LLC Operating Agreement

Q: Is an operating agreement required for a West Virginia LLC?

No. West Virginia does not require an LLC to adopt an operating agreement, and the Secretary of State will form the company without one. Without an agreement, the default rules in W. Va. Code Chapter 31B govern management, voting, distributions, transfers, and dissolution entirely.

Q: Is a West Virginia operating agreement filed with the state?

No. The operating agreement is a private internal document. It is not filed with the West Virginia Secretary of State and does not appear on the public record. Keep the signed original with the company's records alongside the filed Articles of Organization and the EIN confirmation.

Q: What can a West Virginia operating agreement not do?

W. Va. Code 31B-1-103(b) lists seven limits. The agreement cannot unreasonably restrict access to records, eliminate the duty of loyalty, unreasonably reduce the duty of care, eliminate the obligation of good faith and fair dealing, vary the right to expel a member under 6-601(6), vary certain winding-up requirements, or restrict third parties' rights.

Q: Can the agreement modify the duty of loyalty at all?

It cannot eliminate the duty, but section 31B-1-103(b) permits two modifications: the agreement may identify specific types or categories of activities that do not violate the duty of loyalty, and it may specify the number or percentage of members or disinterested managers who can authorize or ratify an act that would otherwise violate it.

Q: Does a single-member LLC in West Virginia need an operating agreement?

It is not legally required, but it is worth having. The document evidences that the company is separate from its owner, identifies who is authorized to act for the company for banks and counterparties, and sets out what happens to the membership interest on the owner's death or incapacity.

Q: Does the operating agreement affect how the LLC is taxed?

No. Federal classification is set by IRS rules and any election the LLC makes - partnership by default for multi-member LLCs, disregarded for single-member LLCs, or corporate by election. The agreement should be drafted consistently with the classification, but amending it does not change the tax treatment.

Fact-checked by the LegalGlass editorial team against primary sources · Published Aug 20, 2026 · Last updated Aug 20, 2026

A West Virginia LLC operating agreement is the private contract among the members that regulates the company's affairs. W. Va. Code §31B-1-103 authorizes it and lists seven things the agreement may not do. West Virginia does not require the agreement to be filed with the Secretary of State.

Quick Answer

Governing statute: W. Va. Code Chapter 31B, §31B-1-103
Filed with the state?: No - it is a private document
Required by law?: Not required, but the default rules apply without one
Non-waivable items: Seven, listed in §31B-1-103(b)
Who signs: All members
Single-member LLCs: Still benefit - evidences separateness from the owner
Agency for filings: West Virginia Secretary of State

What the Operating Agreement Is

West Virginia limited liability companies are governed by Chapter 31B of the West Virginia Code, the state's Uniform Limited Liability Company Act. Section 31B-1-103(a) states that all members of a limited liability company may enter into an operating agreement "to regulate the affairs of the company and the conduct of its business, and to govern relations among the members, managers and company."

That single sentence carries the whole idea. The statute supplies a complete set of default rules for how an LLC runs. The operating agreement is the members' opportunity to replace those defaults with terms they actually chose. To the extent the agreement is silent, Chapter 31B fills the gap - so an LLC without an agreement is not ungoverned, it is simply governed entirely by the statute's defaults rather than by the owners' intentions.

The agreement is not filed with the West Virginia Secretary of State and does not appear on the public record. It sits with the company's internal records. See what an LLC is for the structure and how to form an LLC for where the agreement fits in the sequence.

Not Required, But Rarely Wise to Skip

West Virginia does not condition the formation or continued existence of an LLC on having a written operating agreement. The Secretary of State will file Articles of Organization and issue the entity without ever asking about one.

Three practical pressures push toward having one anyway. First, banks and lenders routinely request it before opening accounts or extending credit, because it is the document that proves who is authorized to bind the company. Second, when members disagree - over distributions, over admitting a new member, over what happens when someone wants out - the agreement is the only place those answers live, and drafting one after the dispute has started is far harder. Third, for a single-member LLC, a written agreement is contemporaneous evidence that the company is a separate entity from its owner, which supports the liability shield.

The Seven Things the Agreement May Not Do

Section 31B-1-103(b) is the boundary of freedom of contract for West Virginia LLCs. It lists seven things an operating agreement may not do:

Unreasonably restrict a right to information or access to records under section 4-408.
Eliminate the duty of loyalty - although the agreement may identify specific types or categories of activities that do not violate the duty, and may specify the number or percentage of members or disinterested managers that may authorize or ratify an act that would otherwise violate it.
Unreasonably reduce the duty of care under section 4-409(c) or 6-603(b)(3).
Eliminate the obligation of good faith and fair dealing - although the agreement may determine the standards by which performance of the obligation is measured, if those standards are not manifestly unreasonable.
Vary the right to expel a member in an event specified in section 6-601(6).
Vary the requirement to wind up the limited liability company's business in a case specified in section 8-801(b)(4) or (b)(5).
Restrict rights of a person, other than a manager, member, or transferee of a member's distributional interest, under the chapter.

Read that list as a design constraint rather than an obstacle. Everything not on it - economics, management structure, voting, transfer restrictions, buy-sell mechanics, dissolution triggers - is fair game for the members to write as they wish.

What Happens Without an Agreement

Chapter 31B's defaults apply in full when the members have not agreed otherwise. They are reasonable general-purpose rules, but they are rarely what a specific business would have chosen. The table shows where the gap usually bites hardest.

Issue	Statutory default under Chapter 31B	What owners usually want instead
Management	Member-managed unless the articles or agreement provide otherwise	Named managers with defined authority limits
Voting	Statutory allocation among members	Voting tied to capital contributions or class
Profit sharing	Statutory allocation	Percentages matching actual contributions and roles
Transfer of interest	A transferee receives economic rights, not management rights	Explicit consent and right-of-first-refusal terms
Adding a member	Consent requirements set by statute	A defined admission process and price
Member exit	Statutory dissociation and expulsion rules	A buy-sell formula and payment terms
Dissolution	Events specified in the Act	Agreed triggers plus a wind-up procedure
Deadlock	No mechanism supplied	Tie-breaker, mediation, or buyout provision

What to Put in a West Virginia Operating Agreement

A workable agreement covers the following, in roughly this order:

Formation facts - the LLC's name as registered, the formation date, the principal office, the registered agent, and the purpose.
Members and capital - each member's name, initial contribution, and ownership percentage, plus whether additional contributions can be required.
Allocations and distributions - how profits and losses are allocated and when cash is actually distributed, which are different questions.
Management - member-managed or manager-managed, who may sign contracts, and what decisions require a supermajority or unanimity.
Voting - per-capita or per-percentage, quorum, and written consent.
Transfers - restrictions, rights of first refusal, and what a transferee receives.
Admission and withdrawal - how new members join and how an exiting member is bought out, including the valuation method.
Dissolution and winding up - agreed triggers and the order of distribution.
Books, records, and tax matters - fiscal year, accounting method, and the partnership representative if applicable.
Amendment - the vote required to change the agreement itself.

Single-Member LLCs

A single-member West Virginia LLC has no one to negotiate with, which makes the agreement feel pointless. It is not. The document does three things a sole owner cannot get elsewhere: it states in writing that the company's assets and the owner's assets are separate, it identifies who is authorized to act for the company (useful for banks and title companies), and it sets out what happens to the membership interest on the owner's death or incapacity. Keep it signed, dated, and filed with the company records, and follow it - an agreement that says the owner will not commingle funds is worth little if the bank statements show otherwise.

The Agreement and Federal Tax Classification

The operating agreement does not determine how the LLC is taxed. The IRS classifies a domestic multi-member LLC as a partnership by default and a single-member LLC as a disregarded entity, unless the LLC elects corporate treatment. The agreement should be consistent with whatever classification applies - allocations in a partnership-taxed LLC, for example, need to be drafted with the partnership tax rules in mind - but changing the agreement does not change the election, and making the election does not amend the agreement.

If the members intend an S corporation election, the agreement should avoid terms that would create a second class of stock or otherwise break eligibility. Compare the trade-offs in S-corp vs LLC, and see how to get an EIN, what an ITIN is for owners without a Social Security number, the self-employment tax calculator for federal self-employment tax, and business tax for the national overview. West Virginia's own business taxes are administered by the State Tax Division.

Keeping the Agreement Current

An operating agreement is a living document. Revisit it whenever ownership changes, a member is admitted or bought out, capital is contributed, the management structure changes, or a tax election is made. Amend it through the mechanism the agreement itself specifies, in writing, signed by whoever the amendment clause requires.

Keep it with the rest of the company record: the filed Articles of Organization, the annual reports filed with the West Virginia Secretary of State, the EIN confirmation, tax returns, and minutes or written consents for major decisions. When a bank, a buyer, or a court eventually asks how a decision was authorized, that file is the answer. If the entity is being wound up, the agreement's dissolution provisions govern the process - see how to dissolve an LLC. Related references: the registered agent guide, articles of organization, how much an LLC costs, business licenses, what a DBA is, trademark registration, and the glossary.

Frequently Asked Questions

Is an operating agreement required for a West Virginia LLC?

No, but without one the default rules in W. Va. Code Chapter 31B govern the company entirely.

Is a West Virginia operating agreement filed with the state?

No. It is a private internal document and never appears on the Secretary of State's public record.

What can a West Virginia operating agreement not do?

Seven things listed in §31B-1-103(b), including eliminating the duty of loyalty or the obligation of good faith and fair dealing.

Can the agreement modify the duty of loyalty at all?

It may identify categories of activities that do not violate the duty, and specify who may authorize or ratify an otherwise-violating act - but it may not eliminate the duty.

Does a single-member LLC in West Virginia need an operating agreement?

Not legally, but it evidences separateness from the owner and identifies who may act for the company.

Does the operating agreement affect how the LLC is taxed?

No. Federal classification follows IRS rules and any election made; the agreement should simply be drafted consistently with it.

Sources

West Virginia Legislature - W. Va. Code §31B-1-103, Effect of operating agreement; nonwaivable provisions.
West Virginia Legislature - W. Va. Code Chapter 31B, Uniform Limited Liability Company Act.
West Virginia Legislature - W. Va. Code §31B-4-408 (member access to information and records).
West Virginia Legislature - W. Va. Code §31B-4-409 (general standards of member and manager conduct; duty of care).
West Virginia Legislature - W. Va. Code §31B-6-601 (events causing dissociation).
West Virginia Legislature - W. Va. Code §31B-8-801 (events causing dissolution and winding up).
West Virginia Secretary of State - Business and Licensing Division (LLC filings and annual reports).
West Virginia One Stop Business Portal - business4.wv.gov (registration and licensing).
West Virginia State Tax Division - Business Taxes.
IRS - Limited Liability Company (LLC) (default federal classification).
IRS - Single Member Limited Liability Companies.
Legal Information Institute (Cornell) - 26 CFR 301.7701-3 (entity classification election).

LegalGlass provides general information for educational purposes and is not legal advice, is not a law firm, and is not a substitute for advice from a licensed attorney or tax professional. Laws, fees, and thresholds change; verify current amounts with the West Virginia Secretary of State and the West Virginia State Tax Division before acting.