Delaware law calls this a limited liability company agreement, and it may be written, oral, or implied. Delaware also gives broad effect to the agreement itself, so putting the terms in writing lets members define governance, economics, transfers, and exit rules instead of relying on statutory defaults.
Choose the version that matches your Delaware LLC structure.
Is an Operating Agreement Required in Delaware?
Yes, but it does not have to be a signed written document. Delaware law says a limited liability company agreement must be entered into or otherwise exist before, after, or at the time the Certificate of Formation is filed. The same law allows the agreement to be written, oral, or implied.
The agreement itself stays internal. Delaware’s Division of Corporations states that it does not record or maintain copies of LLC operating agreements.
For formation paperwork, use the official Delaware LLC forms. Businesses that will operate in Delaware can handle state registration and licensing through Delaware One Stop, and the Division of Corporations also maintains an official list of Delaware registered agents.
What Delaware Law Calls an LLC Agreement
Delaware defines a “limited liability company agreement” as an agreement of the member or members concerning the LLC’s affairs and the conduct of its business. It may be “written, oral or implied.”
A signed document is not the only way a Delaware LLC agreement can exist. Writing the terms down, however, makes the members’ rules much clearer to establish and apply. § 18-101(9)
Under § 18-101(9), a member, manager, or assignee can be bound by the LLC agreement even without executing it. The LLC itself also does not have to sign the agreement to be bound.
Under § 18-1101(b)–(c), Delaware gives broad effect to freedom of contract in LLC agreements. Duties, including fiduciary duties, may be expanded, restricted, or eliminated, but the implied contractual covenant of good faith and fair dealing cannot be eliminated.
Delaware LLC Default Rules (When Your Agreement Is Silent)
Delaware lets the LLC agreement do much of the work. When it leaves an issue open, these statutory defaults can control.
Members manage by default in proportion to their current interests in profits. Members holding more than 50% of those interests control management decisions.
§ 18-402Profits, losses, and distributions follow the agreed value of each member’s contributions received and not returned.
§§ 18-503, 18-504After formation, a new non-assignee member generally needs the consent of all existing members if the agreement supplies no admission rule.
§ 18-301(b)(1)An assignment does not by itself give the assignee management rights. Without a different agreement rule, all members must consent before the assignee can participate in management.
§ 18-702A member cannot resign before dissolution and winding up unless the LLC agreement provides otherwise.
§ 18-603Unless the agreement changes the rule, members owning more than two-thirds of the current interests in profits can approve dissolution.
§ 18-801(a)(3)