LLC Operating Agreement Generator

How to Draft an LLC Operating Agreement in 2026

A 13-section operator's guide — post-FinCEN IFR, post-NY LLCTA, post-Series LLC expansion.

1. Five states require an operating agreement by statute

California (Corp. Code §17701.10 with §17713.04 applying RULLCA to every LLC formed or registered in the state after January 1, 2014), Delaware (6 Del. C. §18-101, which defines the LLC agreement as mandatory and allows it to be written, oral, or implied), Maine (31 M.R.S. §1521), Missouri (§347.081), and New York (LLC Law §417). New York has the strictest rule: the agreement must be in writing and adopted within 90 days of filing the articles of organization. The agreement is not filed with any secretary of state — it is an internal governance document. Even in the other 45 states, most banks, lenders, title companies, and institutional investors will not close without seeing a signed operating agreement.

The practical consequence of skipping the document is that the LLC falls into the state's default rules — which, in RULLCA states, California particularly, often do not match what founders think they have agreed to. The default-rule failure modes include majority-of-profits voting instead of per-capita, unanimous-consent amendment, automatic mandatory indemnification, and — in RULLCA states — member-managed status even if the parties informally treat one member as the manager.

2. RULLCA vs non-RULLCA defaults: structural choice of law

Approximately 20 U.S. jurisdictions have enacted the Revised Uniform Limited Liability Company Act of 2006 in some form: Alabama, Arizona, Arkansas, California, Connecticut, DC, Florida, Idaho, Illinois, Iowa, Minnesota, Nebraska, New Jersey, North Dakota, Pennsylvania, South Dakota, Utah, Vermont, Washington, and Wyoming. Delaware, New York, and Texas remain outside RULLCA. The differences matter at draft time.

RULLCA presumes member-managed unless the OA opts into manager-managed. RULLCA imposes fiduciary duties of loyalty and care that cannot be eliminated — only tailored. RULLCA default voting is by each member's allocated profit share. RULLCA default requires unanimous consent for any amendment. California layers an additional trap at Corp. Code §17704.07(c): in a manager-managed LLC, the manager needs unanimous member consent to sell all or substantially all assets, merge, convert, or amend the operating agreement, unless the OA expressly provides otherwise. A silent manager-managed OA effectively freezes the manager. The generator inserts the appropriate override clauses automatically when California is selected.

3. Charging-order exclusive remedy and the Olmstead trap

The charging order is the creditor remedy against a member's LLC interest. Some states declare it the exclusive remedy, preventing a judgment creditor from foreclosing on the interest or obtaining turnover of the LLC itself. For multi-member LLCs, most states provide this protection. For single-member LLCs it is narrower. Wyoming (Wyo. Stat. §17-29-503), Nevada, Delaware (6 Del. C. §18-703), South Dakota, and Alaska extend charging-order exclusivity to SMLLCs as well.

Florida does not — after Olmstead v. FTC, 44 So. 3d 76 (Fla. 2010), and the 2011 Olmstead patch codified at Fla. Stat. §605.0503, a Florida SMLLC creditor may seek foreclosure on the interest if the charging order proves inadequate. The standard workaround — forming the LLC in Wyoming or Delaware while the debtor resides in Florida — is unreliable: Florida treats a membership interest as intangible personal property located with the owner, so a Florida court with personal jurisdiction over the debtor will apply Florida creditor-remedy law to the interest regardless of the formation state. The generator flags SMLLC exposure in non-protected states and recommends adding a second bona fide member with real economic rights where creditor protection is a primary objective.

4. Fiduciary duty waivers: Delaware §18-1101(c) is unique

Delaware is the only state that permits near-complete elimination of fiduciary duties in an LLC agreement. Under 6 Del. C. §18-1101(c), the duties of loyalty and care owed by a member, manager, or other person bound by the operating agreement may be expanded, restricted, or eliminated, with one limit: the operating agreement may not eliminate the implied contractual covenant of good faith and fair dealing. Section 18-1101(e) separately allows elimination of liability for breach of contract or fiduciary duties, except for bad-faith violations of the implied covenant. The Delaware Court of Chancery has repeatedly enforced express waivers and treated Delaware LLCs as creatures of contract.

Every other state — including all RULLCA states and New York — prohibits elimination of the duty of loyalty. They permit only defined modifications: identifying specific categories of activity that do not violate the duty, approving specific conflicted transactions after disclosure, or raising the standard of care above gross negligence in some cases. For investor-side LLCs and complex joint ventures, this is the single biggest structural reason Delaware is the default formation state. The generator offers a full waiver with preserved implied covenant for Delaware and a narrower tailored-modification approach for all other states.

5. Series LLC: 21 states, Florida joining July 1, 2026

A Series LLC is a master entity under which separately-identified series hold separate assets with separate liability shields. Delaware pioneered the structure in 1996. As of April 2026, approximately 21 U.S. jurisdictions authorize Series LLC formation: Alabama, Arkansas, Delaware, DC, Illinois, Indiana, Iowa, Kansas, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Puerto Rico, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming. Florida's Protected Series LLC statute takes effect July 1, 2026.

Two structural variants exist. The Delaware model (followed by most states) allows series to be established in the operating agreement with no separate state filing. The Illinois model requires each series to file a Certificate of Designation, making series membership public; Illinois alone labels each protected series an "entity" rather than a "person." Delaware's 2019 amendments added a "registered series" distinct from the older "protected series" for UCC perfection and good-standing purposes. The liability shield between series depends on strict operational discipline: separate bank accounts, separate books, separate titling, separate capital, and a series-name convention that makes the assignment clear to third parties. Courts in Illinois (2024) and Texas and Montana (2024–2025) have consolidated poorly maintained series into the master for enforcement purposes. California does not authorize domestic Series LLCs but recognizes foreign series and — critically — treats each protected series of a registered foreign Series LLC as a separate LLC for purposes of the $800 annual franchise tax and the Statement of Information filing. The generator implements the Delaware model by default with a per-series schedule and separate-records covenant, and flags the CA foreign-registration tax consequence.

6. Federal tax classification: default, check-the-box, and the S-corp crossover

An LLC has no native federal tax status. Under the check-the-box regulations at Treas. Reg. §301.7701-3, a single-member LLC defaults to disregarded entity status (owner reports on Schedule C, E, or F) and a multi-member LLC defaults to partnership status (Form 1065 with K-1s). To elect C-corporation treatment, the LLC files Form 8832; the effective date can be up to 75 days before or 12 months after filing. To elect S-corporation treatment, the LLC files Form 2553 by the 15th day of the third month of the tax year (or within 2 months and 15 days of formation for a new entity); Form 2553 also elects C-corp classification under the regulations, so a separate Form 8832 is not required.

S-corp is chosen primarily to reduce self-employment tax: the owner-employee's reasonable compensation is wages subject to FICA and the residual distribution is not. Eligibility is narrow — 100-shareholder cap, U.S. citizens or resident aliens only, one class of economic interest, no entity shareholders except certain trusts and ESOPs. C-corp is chosen for Qualified Small Business Stock treatment under §1202, for retained earnings without pass-through, or for a venture-capital-fundable cap table. Most states honor the federal election automatically, but a few require a separate state-level filing (New York, California for S-corp) and several impose an LLC-level fee regardless of federal classification (California's $800 minimum franchise tax applies to every LLC). The operating agreement should state the intended classification, name the partnership representative under §6223 for partnership-taxed LLCs, and require unanimous member consent for any change in tax classification.

7. Corporate Transparency Act and the NY LLCTA: 2026 state

The Corporate Transparency Act's original design — beneficial-ownership reporting for most corporations and LLCs formed in the United States — did not survive 2025. On March 2, 2025, Treasury announced it would not enforce the BOI reporting rule against U.S. citizens or domestic reporting companies. On March 21, 2025, FinCEN issued an interim final rule (published in the Federal Register on March 26, 2025) redefining "reporting company" to include only entities formed under foreign law and registered to do business in the United States. Domestic reporting companies — every LLC, corporation, and limited partnership formed under U.S. state or tribal law — are now exempt from federal BOI reporting, updating, or correction. The Eleventh Circuit upheld the CTA's constitutionality on December 16, 2025, but its ruling did not disturb the interim final rule, which remains in effect as of April 2026.

Separately, the New York LLC Transparency Act took effect January 1, 2026. Governor Hochul vetoed the legislative amendment that would have decoupled NY LLCTA definitions from the federal CTA on December 19, 2025. The practical effect: NY LLCTA currently applies only to non-U.S. LLCs that are registered to do business in New York, which must file a beneficial-ownership disclosure or attestation of exemption with the New York Department of State by the earlier of 30 days from registration or December 31, 2026 for pre-existing foreign LLCs. The NY DOS does not accept FinCEN identifiers — full beneficial-owner information must be filed directly. The generator includes a notice clause advising members of the current federal exemption and flags NY LLCTA exposure whenever New York is the formation or qualification state.

8. Capital contributions, capital calls, and dilution mechanics

Initial capital contributions are documented in a schedule attached to the operating agreement, with cash, services, property, and promissory notes separately identified and valued. Services contributions are tricky: IRS Rev. Proc. 93-27 and 2001-43 govern profits-interest treatment, and a capital interest granted for past services creates taxable income. The safer grant for an incoming service-member is a profits interest tied to future value, documented with an §83(b) election where appropriate.

Capital calls beyond the initial contribution come in three flavors. Pro-rata-optional calls preserve minority positions — a non-contributing member simply does not participate — but can leave the LLC underfunded. Pro-rata-with-cram-down is the market default for investor-grade LLCs: non-contributing members' percentage interests shrink in proportion to the funded vs required amount, per a formula set out in the OA. Punitive dilution applies a multiplier (commonly 2x or 3x) to the cram-down, shrinking the non-participant's interest faster than pure dilution math would produce. Delaware courts will enforce punitive dilution if the math is clearly disclosed in the original OA and the call is exercised in good faith; California and a few other states will scrutinize it for unconscionability. The generator implements standard pro-rata-cram-down with an optional multiplier, prints the dilution formula and a worked example, and requires a minimum 10-business-day notice for capital calls.

9. Distribution waterfalls: pro-rata, target, and preferred-return-and-promote

The simplest distribution model is pro-rata — distributions track percentage interests directly. It works for equal-sweat-equity LLCs and small partnerships. For any LLC with meaningful capital investors, a more structured waterfall is standard. A preferred-return-and-promote structure pays a fixed preferred return (commonly 6–8% annually, cumulative and compounded) on invested capital to capital contributors first, then returns capital, then splits residual profits at a carried-interest percentage (commonly 20–30% to the sponsor/manager, 70–80% to capital). Target allocations rebalance capital accounts to match an economic-result waterfall at year-end, using §704(b) regulatory safe harbors.

Tax distributions sit separately from the economic waterfall. An LLC taxed as a partnership allocates income to members whether or not it distributes cash, and members owe tax on that allocated income. Standard practice is a mandatory quarterly tax distribution equal to the product of taxable income times the highest combined federal-state rate applicable to any member — an advance against the economic waterfall but independent of it. Without tax distributions, minority members can owe tax on phantom income they never received, a fast way to destroy a cap table. The generator offers pro-rata, pref-and-promote, and target-allocation waterfalls, and auto-inserts a quarterly tax distribution at a configurable rate (default 40%).

10. Transfer restrictions, ROFR, drag, tag, and buy-sell triggers

Every multi-member LLC needs four layers of transfer control. First, a consent requirement: no membership interest transfer without a specified vote (supermajority of non-transferring members is the market standard). Without it, every purported transfer automatically brings in a third-party owner. Second, a right of first refusal — before accepting a bona fide third-party offer, the transferring member offers the same terms to the LLC and then to other members pro-rata. The variant is a right of first offer, where the member states a price and others may buy at that price or permit a sale at or above. Third, drag-along and tag-along: a qualifying majority can force minority members to join a sale on the same terms (drag); minority members can ride along with a majority sale at the same price (tag). Fourth, buy-sell mandatory-purchase triggers on death, divorce, disability, bankruptcy, termination of employment, and deadlock, with a valuation formula (book value, appraised fair value, or a book-value-plus-EBITDA-multiple hybrid).

Divorce is the most frequently-missed trigger. Without a divorce-trigger buy-out at a pre-agreed price, a member's ex-spouse can end up holding a community-property share in the LLC, entitled to distributions and — depending on state law and the court's order — sometimes management rights. The generator includes a divorce-trigger with mandatory buy-out at the OA formula price and gives the buy-out obligation to the LLC first and the non-divorcing members second.

11. Indemnification, exculpation, and the RULLCA default

RULLCA's default is mandatory indemnification of managers and members for expenses reasonably incurred in defending themselves against claims relating to LLC business. In practice, mandatory indemnification can be too broad — the LLC may want discretion to evaluate the facts of a specific claim before advancing fees or indemnifying. Standard drafting is to use "may" rather than "shall" and require a determination by disinterested members that the person acted in good faith and in the reasonable belief that the action was in the LLC's interest. Gross negligence, willful misconduct, and intentional bad acts are excluded.

Advancement of legal fees is a separate question — it is the obligation to pay defense costs as they are incurred, before any ultimate finding on indemnification. Delaware §18-108 explicitly permits advancement with a simple undertaking to repay if indemnification is ultimately denied. Most other states follow. Advancement is the more valuable right in a real dispute; without it, the defendant funds their own defense until the matter ends.

12. Dissolution, deadlock, and the judicial-dissolution remedy

Dissolution triggers in a well-drafted operating agreement include: (i) unanimous member vote (or a specified supermajority); (ii) entry of a judicial decree of dissolution; (iii) sale of all or substantially all assets with no reinvestment; (iv) expiration of a stated term, if the LLC has one; (v) loss of all members with no admission of a new member within the statutory cure period (typically 90 days). After dissolution, the LLC winds up affairs, pays creditors in statutory order, and distributes residual assets to members according to the waterfall.

Deadlock is the fatal problem for 50/50 multi-member LLCs. Standard mechanisms include: (a) tiebreaker member with a casting vote on specified issues; (b) mediation followed by binding arbitration; (c) a buy-sell option (Texas shootout or Russian roulette) triggered by written notice; (d) judicial dissolution under the state's LLC Act when the economic purpose is frustrated or the members cannot reasonably agree on continued operation. The Delaware Court of Chancery has granted judicial dissolution in Fisk Ventures LLC v. Segal and similar cases where two sophisticated investors reached persistent impasse. The OA should specify the deadlock mechanism the members prefer rather than leaving it to judicial discretion.

13. Amendment, governing law, and arbitration with the EFAA carve-out

The amendment procedure should specify the vote required — unanimous is the RULLCA default but often too strict for operational realities. A majority-vote amendment with supermajority carve-outs for certain protected provisions (admission of new members, change in distribution priority, change in manager authority, change in transfer restrictions, change in the amendment clause itself) is the common middle ground. Amendments must be in writing and signed by the requisite percentage of members.

Governing law should match the formation state — an LLC formed in Delaware should choose Delaware law; a California LLC should choose California law. Mismatched choice-of-law clauses are unreliable and can be struck under internal-affairs doctrine. Arbitration is standard for high-value LLCs that value confidentiality and speed; the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (9 U.S.C. §402, effective March 3, 2022) requires an express carve-out permitting claimants to pursue sexual assault and sexual harassment claims in court at their election. A small-dollar LLC may prefer state court for its LLC disputes — the Delaware Court of Chancery has deep LLC-dispute expertise and short docket, and California and New York have specialized business courts. The generator defaults to arbitration with the EFAA carve-out and the formation state's governing law.

Frequently Asked Questions

Built by Derek Giordano · Part of Ultimate Design Tools
Informational only. Not legal advice. Consult counsel for your specific situation.