LLC Operating Agreement Requirements in Delaware

At a glance

Requirements one by one

Governing law and document name

The Delaware Limited Liability Company Act, 6 Del. C. ch. 18, calls the document a limited liability company agreement while expressly recognizing that it may be called an operating agreement or something else. Section 18-101(9) focuses on the agreement's substance, not its label.

Required or optional

Delaware uses mandatory language with flexible timing. Under § 18-201(d), an agreement “shall be entered into or otherwise existing” before, at, or after the certificate is filed. The Act states no general deadline and does not make formation wait for the agreement: § 18-201(b) forms the LLC when the certificate is filed or at its stated later effective time.

Because the agreement may be implied and may arise after filing, this is not a signed-document-at-formation rule. It is an agreement-existence rule with no separate statutory penalty stated for delay.

Permitted form and signatures

Section 18-101(9) recognizes written, oral, and implied agreements. Members, managers, assignees, and the LLC itself may be bound without executing the agreement. A Delaware LLC agreement is also not subject to a statute of frauds, including 6 Del. C. § 2714.

A written agreement may admit a member or assignee without that person's signature when the person satisfies the written admission conditions. Separate law or the agreement itself can still require a signed record for a particular transaction or promise.

Adoption timing and effect

Section 18-201(d) permits the agreement to exist before, at, or after filing. Whenever made, it may take effect as of the certificate's effective time or at another time or date provided in or reflected by the agreement.

Single member and assent

Section 18-101(9) expressly makes a one-member agreement enforceable. It also binds the LLC, members, managers, and assignees without requiring execution. Section 18-301(d) permits admission of a sole member without a contribution or even an LLC interest unless the agreement says otherwise.

For initial admission, § 18-301(a) follows the agreement and formation timing. For later admissions, the agreement's stated conditions control. If it is silent, § 18-301(b) generally requires all-member consent for a new nonassignee member, while § 18-704 governs admission of an assignee.

Management and authority defaults

Delaware defaults to member management under § 18-402. Management power follows each member's current profit interest, and members owning more than 50% of those interests control. The agreement may instead vest management in one or more managers.

Unless the agreement provides otherwise, every member and manager has authority to bind the LLC. Delaware's certificate of formation need not state whether the company is member- or manager-managed; that choice can remain in the private agreement.

Voting, economic, and transfer defaults

The Act's economic defaults follow contributed value, not an automatic equal split. Sections 18-503 and 18-504 allocate profits, losses, and distributions by the agreed value of contributions actually received and not returned when the agreement is silent.

Section 18-702 normally gives an assignee economic rights without management or member powers. Under § 18-704(a), the agreement's admission route controls; otherwise all members generally must consent to the assignee's admission.

Nonwaivable rules and duties

Delaware's central rule is maximum freedom of contract under § 18-1101(b). Section 18-1101(c) allows the agreement to expand, restrict, or eliminate fiduciary duties. Section 18-1101(e) likewise permits broad limitation or elimination of contractual and duty-based liability.

Two linked floors remain express: the agreement cannot eliminate the implied contractual covenant of good faith and fair dealing, and it cannot eliminate liability for a bad-faith violation of that covenant. Information rights under § 18-305 may be expanded or restricted through the agreement's permitted process. The Act also states a distribution-solvency rule in § 18-607(a) and gives members or managers a Court of Chancery judicial-dissolution route under § 18-802.

Amendment, filing, and records

The agreement's own amendment method controls under § 18-302(e). If it gives no method, § 18-302(f) defaults to approval by all members, subject to the Act's specified merger, division, and registered-series alternatives.

The public formation filing is the certificate, not the agreement. Section § 18-201(a) requires filing the certificate of formation and lists its minimum contents. Section 18-305(h) requires a current record identifying each member's and manager's name and last known address. A member's statutory information right under § 18-305(a)(4) includes a copy of any written agreement, certificate, and amendments, subject to the standards and permitted restrictions in § 18-305.

What trips people up

“Required” does not mean signed on filing day. The agreement must exist, but it may be oral or implied and may arise after the certificate is filed.

The default vote is not one person, one vote. Member management follows profit interests, with more than 50% controlling, unless the agreement changes the rule.

Dissolution has its own statutory route. Under § 18-801(a), the Act supplies the default events and approval threshold, while § 18-802 authorizes judicial dissolution when conforming operation is not reasonably practicable.

Delaware freedom of contract is broad but not unlimited. Duties and many liabilities may be eliminated; the implied covenant and bad-faith covenant liability may not be.

Common questions

Can a Delaware LLC use an oral operating agreement? Yes. Section 18-101(9) recognizes written, oral, and implied agreements.

Must a later member sign the existing agreement? Not necessarily. The Act can bind members without execution, and a written admission provision can work when its conditions are satisfied without a signature.

Does assigning the interest make the buyer a member? No. The assignee first receives the assigned economics; the agreement or the statutory consent route controls admission as a member.

Statutes and sources

• 6 Del. C. § 18-101(9) — form, unsigned assent, sole-member agreements, statute of frauds, and admission conditions. https://delcode.delaware.gov/title6/c018/sc01/index.html (accessed 2026-07-27)
• 6 Del. C. §§ 18-201 and 18-202 — certificate formation, agreement timing and effect, and certificate amendment. https://delcode.delaware.gov/title6/c018/sc02/index.html (accessed 2026-07-27)
• 6 Del. C. §§ 18-301, 18-302, and 18-305 — admission, amendment, member information rights, and required contact records. https://delcode.delaware.gov/title6/c018/sc03/index.html (accessed 2026-07-27)
• 6 Del. C. § 18-402 — management, voting, and authority defaults. https://delcode.delaware.gov/title6/c018/sc04/index.html (accessed 2026-07-27)
• 6 Del. C. §§ 18-503 and 18-504 — profit, loss, and distribution defaults. https://delcode.delaware.gov/title6/c018/sc05/index.html (accessed 2026-07-27)
• 6 Del. C. § 18-607 — distribution solvency and knowing-recipient liability. https://delcode.delaware.gov/title6/c018/sc06/index.html (accessed 2026-07-27)
• 6 Del. C. §§ 18-702 and 18-704 — assignment and assignee admission. https://delcode.delaware.gov/title6/c018/sc07/index.html (accessed 2026-07-27)
• 6 Del. C. §§ 18-801 and 18-802 — dissolution and judicial dissolution. https://delcode.delaware.gov/title6/c018/sc08/index.html (accessed 2026-07-27)
• 6 Del. C. § 18-1101 — maximum contract freedom, fiduciary-duty changes, implied-covenant floor, and liability limits. https://delcode.delaware.gov/title6/c018/sc11/index.html (accessed 2026-07-27)