Delaware is the only state where an LLC operating agreement can legally erase the duty of loyalty. Under 6 Del. C. § 18-1101(c), members may expand, restrict, or eliminate almost any fiduciary duty by contract — self-dealing, competing with the company, taking company opportunities — and Delaware courts will enforce that choice. Only the implied covenant of good faith and fair dealing survives. That single provision is why sophisticated operators form here, and why a generic operating agreement downloaded for “any state” leaves the most valuable feature of Delaware law switched off.
This page provides a free Delaware LLC Operating Agreement template in both PDF and Microsoft Word format, drafted against Title 6, Chapter 18 of the Delaware Code. It includes the § 18-1101 duty-modification language, the Certificate of Formation cross-references, and signature blocks for member-managed and manager-managed structures. Download the version that fits your workflow and customize the bracketed fields.
Free Delaware LLC operating agreement template and sample form
Fill it in below and the document is generated in your browser — nothing is uploaded and there is no signup. The PDF and Word versions are there if you prefer to draft offline. Whichever you use, state the duty-modification choice explicitly — silence leaves Delaware’s default fiduciary duties switched on.
Delaware LLC Costs and Deadlines (Verified August 2026)
Figures below come from the Delaware Division of Corporations fee schedule and tax instructions, not from secondary sources. Third-party sites widely quote a $90 formation fee; the official schedule revised 1 August 2024 lists $110.
| Item | Amount | Detail |
|---|---|---|
| Certificate of Formation (domestic LLC) | $110 | Division of Corporations fee schedule, rev. 1 Aug 2024 |
| Annual LLC tax | $300 | Flat rate, due on or before 1 June for the prior year |
| Annual report | None | LLCs pay the tax only; annual reports apply to corporations |
| Late payment | $200 + 1.5%/mo | Penalty plus monthly interest on tax and penalty |
| Foreign Certificate of Registration | $200 | For a non-Delaware LLC registering in Delaware |
| Amendment (domestic) | $220 | Changes to the Certificate of Formation |
| Registered agent | $50–300/yr | Physical Delaware street address required; no P.O. boxes |
| Operating agreement filing | Not filed | Internal document; only the Certificate of Formation is public |
What Delaware Lets You Contract Around
Most state LLC acts hand you a set of default rules and let you adjust the edges. Delaware inverts that. Section 18-1101(b) states the policy directly: to give maximum effect to the principle of freedom of contract and to the enforceability of LLC agreements. The defaults exist only to fill gaps you did not address.
The practical consequence shows up in disputes. Consider two members who form a Delaware LLC to acquire commercial property. One of them later buys an adjacent parcel personally, without offering it to the LLC. In a state with mandatory fiduciary duties, that is a textbook usurpation of a company opportunity. In Delaware, whether it is actionable depends almost entirely on what the operating agreement says — and if the agreement expressly permits members to pursue outside investments, the claim fails. The document is the law between the members.
Two guardrails remain. The implied covenant of good faith and fair dealing cannot be eliminated under § 18-1101(c); it polices conduct the agreement did not anticipate rather than second-guessing bargains the members actually struck. And a member or manager who relies in good faith on the terms of the LLC agreement is protected from breach-of-fiduciary-duty liability for that reliance.
Provisions That Matter Most Under Delaware Law
- The duty-modification clause. The single most consequential paragraph in a Delaware operating agreement. Silence means default fiduciary duties apply. Decide deliberately whether to keep, narrow, or eliminate the duties of loyalty and care, and say so expressly.
- Outside-activities carve-out. Whether members may pursue competing ventures or investments without offering them to the LLC. Closely tied to the duty-modification clause and the most common source of Delaware member litigation.
- Management designation. Member-managed or manager-managed. Delaware does not require this in the Certificate of Formation, so the operating agreement is the only place it is recorded — which makes ambiguity here expensive.
- Capital contributions and the obligation to fund. Under § 18-502 a member’s promise to contribute is unenforceable unless it is in writing. An oral funding commitment is not collectable.
- Distributions and the solvency limit. Section 18-607 prohibits distributions that would leave liabilities exceeding fair value of assets, and a member who knowingly receives one can be liable to return it for three years.
- Transfer restrictions. Delaware’s default separates economic rights from voting rights: an assignee gets distributions but not membership unless the agreement or the other members admit them.
- Buyout and exit mechanics. Delaware has no default right for a member to withdraw and be paid fair value. Without a buyout clause, a member who wants out has no statutory exit.
- Books and records. Section 18-305 gives members inspection rights that the agreement may restrict — one of the few places where narrowing rights is worth thinking about carefully.
- Tax election. Default is partnership taxation for multi-member LLCs, disregarded entity for single-member. S-corp or C-corp treatment requires a timely Form 2553 or 8832.
Mistakes Specific to Delaware LLCs
- Waiting for a tax bill that never arrives. Delaware does not mail an assessment for the $300 annual tax. The obligation runs whether or not you are reminded, and missing 1 June triggers $200 plus 1.5% monthly interest.
- Assuming Delaware formation is the end of it. A Delaware LLC that actually operates in another state must also register there as a foreign LLC and pay that state’s fees. Forming in Delaware to run a business in California means paying both — including California’s $800 minimum franchise tax.
- Leaving fiduciary duties unaddressed. The most valuable feature of Delaware law is opt-in. An agreement that says nothing about duties gets the defaults, which means the flexibility you formed in Delaware for is unused.
- Eliminating duties without replacing them. The opposite error. Stripping out the duty of loyalty in a two-member LLC with no substitute governance leaves each member free to compete against the company. Waivers belong in deals where the parties have real bargaining leverage.
- Oral capital commitments. Section 18-502 makes them unenforceable. A handshake on “you’ll put in $50,000 when we close” is worth nothing if it is not written into the agreement.
- Letting the registered agent lapse. If the agent resigns or the address becomes invalid and is not replaced, Delaware can revoke the Certificate of Formation.
- Believing Delaware LLCs owe Delaware income tax. A Delaware LLC that does not transact business in Delaware owes no Delaware income tax — but it still owes the $300 annual tax, and it owes income tax wherever it does operate.
Frequently Asked Questions
Does Delaware require an LLC operating agreement to be in writing?
No. The Delaware LLC Act defines a limited liability company agreement as one that may be written, oral, or implied. In practice an oral agreement is a poor idea — § 18-502 makes unwritten capital commitments unenforceable, and proving oral terms in a dispute is difficult — but the statute does not mandate writing.
Can a Delaware LLC waive fiduciary duties?
Yes. Section 18-1101(c) permits the LLC agreement to expand, restrict, or eliminate any fiduciary duty, including the duty of loyalty. The one duty that cannot be eliminated is the implied contractual covenant of good faith and fair dealing. This is the broadest contractual freedom of any state.
How much does it cost to maintain a Delaware LLC?
A flat $300 annual tax due by 1 June, plus a registered agent fee of roughly $50–300 per year. There is no annual report requirement for LLCs, unlike Delaware corporations.
Is the operating agreement filed with the state?
No. It is an internal document that is never filed. Only the Certificate of Formation is public, and it lists the LLC name and registered agent — not the members.
Do I need to live or do business in Delaware to form a Delaware LLC?
No. You need a registered agent with a physical Delaware street address; a P.O. box does not qualify and an out-of-state home address cannot be used. If your LLC operates in another state, expect to register there as a foreign LLC as well.
What is the Court of Chancery?
Delaware’s business court. It sits without a jury, decides cases through judges who handle corporate and LLC disputes exclusively, and has produced the deepest body of entity case law in the country. For an operating agreement, that matters because the language you write has a large volume of precedent interpreting it.
Can a Delaware LLC have a single member?
Yes. Single-member LLCs are fully recognized. The operating agreement still matters — for a single-member LLC it is a key piece of evidence that the company is being respected as a separate entity if someone tries to pierce the veil.
Can a member force the LLC to buy out their interest?
Not by default. Delaware provides no statutory right to withdraw and be paid fair value. If members want an exit route, the operating agreement has to create one.
Download the Free Delaware LLC Operating Agreement
Related Templates
Delaware’s contractual flexibility is unusual. If you are forming where you actually operate, compare the rules first: the California LLC operating agreement template covers a state that caps duty waivers and charges an $800 minimum franchise tax, while the New York LLC operating agreement template covers the one state that requires a written agreement by statute. For a side-by-side of all states, see the LLC operating agreement by state hub, or start from the free LLC operating agreement template if your state is not listed yet.
Also frequently used alongside an operating agreement: the free non-compete agreement template for member and employee restrictions, and the free independent contractor agreement for the people your LLC pays before it has employees.
Sources: Delaware Division of Corporations fee schedule (rev. 1 August 2024) and LLC/LP/GP tax instructions; 6 Del. C. §§ 18-101, 18-305, 18-502, 18-607, 18-1101. Verified August 2026. See our editorial policy for how we source state-specific requirements.