What Goes in an LLC Operating Agreement

Why Do Most States Not Require an Operating Agreement?

Most states don't legally require written operating agreements. Instead, state law provides default rules that apply automatically when founders don't write their own agreement. Per IRS Publication 3402, those defaults assume equal ownership and profit distribution unless documented otherwise.

What Are the 6 Things Every Operating Agreement Must Cover?

Every operating agreement must lock in six core provisions before state defaults override your actual intentions and destroy your business.

1. Ownership Percentages and Initial Capital Contribution

State law presumes equal ownership regardless of capital invested. Many DIY templates leave ownership percentages blank or vague. Example: Founder A invests $500K for 80% ownership; Founder B invests $10K for 20% ownership. Without an agreement explicitly stating this, courts default to 50-50 ownership and creditors of Founder B can claim B owns 50% of profits.

2. Management Structure: Member-Managed vs. Manager-Managed

Your operating agreement must specify who makes decisions. In a member-managed LLC, all members participate in daily business decisions. In a manager-managed LLC, you appoint one or more managers (who may be members or outsiders), and only the managers make decisions — members have limited input. According to SBA guidance, without an agreement specifying this, most states default to member-managed, which can paralyze a growing business.

3. Voting Rights and Major Decision Thresholds

What votes require unanimous consent? What requires a simple majority? Your operating agreement should specify voting thresholds for major decisions — adding new members, selling the business, taking on debt, amending the agreement itself. Without it, state law may require unanimous consent for everything, including routine decisions, or may allow simple majority for actions you wanted to protect. This is where deadlock happens: a 50-50 partnership with no voting rules can deadlock on any decision.

4. Profit Distribution and Withdrawal Rules

Profit distribution must be in writing and can differ from ownership percentage. Without it, the IRS presumes equal profit split by ownership, which may trigger an audit if practice differs. Specify when members withdraw money and whether distributions are mandatory or discretionary.

5. Member Departure, Death, and Succession Procedures

Without an agreement, a deceased member's heirs inherit their stake and freeze the business. Include buy-sell provisions — remaining members have first right to purchase — and restrictions on member transfers so no new member can join without unanimous consent.

6. Dissolution and Wind-Down Procedures

Specify dissolution conditions, creditor payment order, and asset distribution. Without it, any single member can force dissolution unilaterally, destroying the business to settle a dispute.

Single-Member vs. Multi-Member: The Differences That Matter

Single-Member LLCs: Liability Shield vs. Personal Disregard Risk

Courts are more willing to pierce single-member LLC veils if you treat it like a sole proprietorship — commingling funds, personal purchases from the business account. An operating agreement documents that the LLC is formal, protecting the veil. It's evidence you're separating personal and business finances.

Multi-Member LLCs: Deadlock and Exit Disputes

Two founders with 50-50 ownership and no agreement deadlock on any major decision. The agreement should specify deadlock-breaker procedures: a tie-breaker vote, buyout clause, or mediation. When a founder wants out or dies, buy-sell provisions mean remaining members can force a buyout at a pre-agreed price, avoiding heirs inheriting the stake.

What Happens Without an Operating Agreement

Here's a concrete example. Two entrepreneurs form an LLC to build software. Founder A invests $200,000 in engineering time and equipment. Founder B invests $50,000 in office space and sales. They shake hands and start working. No operating agreement.

Year one is great. Revenue climbs to $500,000. Founder B gets a competing job offer and wants to leave. Under state default rules, Founder B owns 50% — equal to Founder A, despite the lower capital contribution. Founder A cannot buy them out without Founder B's agreement. Founder B leverages this: "Buy my stake for $150,000 or I leave and my heirs inherit my 50% stake, deadlocking the company." Founder A pays the premium. The LLC loses $75,000 to a cash grab.

Alternatively, Founder B dies. Their heirs inherit the 50% stake. Founder A is now in business with Founder B's estate, unable to make decisions without permission from people who have no interest in running the company. The business is frozen until the estate is settled — which can take years.

An agreement stating Founder A owns 80% and Founder B owns 20%, plus buy-sell provisions at a pre-agreed valuation formula, avoids both scenarios entirely.

The 3 Mistakes That Make Operating Agreements Unenforceable

Mistake 1: Generic Templates Without State-Specific Language

Many templates are one-size-fits-all and omit state-specific language. California LLC law allows broad non-compete clauses; other states void them. Wyoming allows single-member LLCs to be treated as corporations for tax purposes; most states don't. If your template was written for California law but you're forming in Texas, key protections may not be enforceable.

Mistake 2: Blank Ownership Percentages

Templates with placeholder lines — "Member A: ___%" — are left blank, defaulting to equal ownership by state law. Use explicit numbers: "Member A: 70%, Member B: 30%."

Mistake 3: No Buy-Sell Clauses

DIY templates routinely omit buy-sell provisions. When a member dies or exits, the agreement says nothing and state law takes over — freezing the business. Include buy-sell language that specifies a pricing method (book value, EBITDA multiple, or appraisal) and gives remaining members right of first refusal.

Three Ways to Get It Done

You have three realistic paths. Which one fits depends on your complexity and budget.

Hire an attorney ($2,000–$5,000). Worth it if you have four or more investors, non-standard voting rights, or high regulatory exposure — real estate, financial services, healthcare. For a two-founder service business with equal ownership, it's overkill.

Download a DIY template ($20–$100). LegalZoom, Rocket Lawyer, and Nolo all sell templates. The risk is enforceability: templates are often written for a generic state, leave key provisions vague, and won't hold up the one time you actually need them. Acceptable if a co-founder is an attorney and can audit the language for your state.

Generate one with an AI tool. The right tool asks you the right questions — ownership split, management structure, profit distribution, exit provisions — and outputs a state-aware agreement with all six core provisions filled in. No blank lines, no guessing. It's the practical middle ground for founders who know what they want and need a fast, clean document to show a bank or a partner.

Whatever path you take, the agreement needs to exist before the first dispute, not after.