Can a Delaware Series LLC Operate in Other States?

The Series LLC originated in Delaware in 1996, and the Diamond State remains the best state to form a Series LLC today. Curious entrepreneurs often ask whether a Delaware Series LLC can operate in other states. More specifically, can a Delaware Series LLC operate in states without laws expressly authorizing Series LLCs?

The Series LLC was once unknown and relatively new. Now many entrepreneurs are comfortable using the Delaware Series LLC in non-series states. How is this entity type treated outside of Delaware? We cover what you need to know if you want to operate a Delaware Series LLC in other states.

Can a Delaware Series LLC Do Business in Other States?

A Delaware Series LLC is able to do business in any state. However, it is not abundantly clear whether each state will afford a Delaware Series LLC the same liability protections provided by the Delaware LLC Act.

States generally cannot discriminate against business entities from other states. However, some people question whether Series LLCs will be treated differently by states that have not passed laws specifically authorizing Series LLCs. This has caused some entrepreneurs to feel uncertain whether these “non-series” states will respect the internal liability protections afforded to Delaware Series LLCs.

How to Operate a Delaware Series LLC in Other States

Many states require Delaware Series LLCs with employees or offices in that state to undergo a qualification process before receiving authority to do business. This typically involves appointing a Registered Agent for the Series LLC in the foreign state.

Which States Allow Series LLCs?

Approximately 20 states currently have some kind of law authorizing Series LLCs. The most popular states to form a Series LLC in are Delaware, Texas, and Illinois. Other popular states with Series LLC laws include Nevada, Tennessee, Iowa, and Oklahoma.

Increased interest from serial entrepreneurs has motivated more states to adopt Series LLC laws. In 2020, South Dakota introduced amendments to its Uniform Limited Liability Company Act to allow for Series LLCs. Florida is another state making progress towards introducing Series LLCs.

Some states without Series LLC laws have passed legislation explicitly stating that they will recognize foreign Series LLCs from other states. One example is Pennsylvania, which requires state courts to respect the limited liability protections afforded to Delaware Series LLCs.

Other states have chosen to allow Delaware Series LLCs to do business, but currently treat protected series as separate entities. In some instances, this means separate franchise tax obligations. California is a prime example. California allows Delaware Series LLCs, however, the California Franchise Tax Board has declared it will charge an $800 fee for each protected series doing business in the state.

Why Don’t All States Allow Series LLCs?

Generally, legislation is slow to catch up with innovation. The traditional LLC was first introduced in the state of Wyoming in 1977. It took nearly 30 years for all 50 states and Puerto Rico to pass their own LLC statutes.

Series LLCs have been around for over 20 years, however, some of the complexities surrounding their ability to create protected series has slowed adoption by some states. Many lawyers and state legislatures may simply not understand Series LLC. Moreover, the business community in these states may not be showing interest in these entities.

Another roadblock is uniformity. States often draft LLC laws with the goal of making it easy for LLCs to do business in other states. This becomes challenging when laws are completely different in each state. State legislatures often turn to adopting recommendations made by the Uniform Law Commission (ULC).

The ULC has made progress towards introducing uniformity to the Series LLC space through the Uniform Protected Series Act (UPSA). Published in 2017, the UPSA combines features of Series LLC laws from multiple states and offers guidance for states to craft their own laws. Many states, including Arkansas, have adopted the Uniform Protected Series Act by implementing some of its key tenets into their own LLC Acts.

What Case Law Is There About Series LLCs?

Critics of the Series LLC point to the fact that few state courts have actually published opinions addressing Series LLCs. This creates uncertainty about how judicial systems may handle disputes involving Series LLCs.

Some legal practitioners are cautious about operating Delaware Series LLCs because they find a lack of case law makes judicial outcomes less predictable. A more positive approach is to view a lack of case law as a favorable sign that few Delaware Series LLCs have ended in disputes.

Tips for Operating a Delaware Series LLC In Other States.

Certain business practices are crucial to maintaining the liability protections between a Series LLC, its protected series and its members. These practices become even more important when operating a Delaware Series LLC in a different state:

  1. Maintaining Separate Records for Protected Series.

Maintaining separate records for protected series is critical to operating a Delaware Series LLC. Series LLC managers need to properly trace assets associated with each protected series to ensure that assets are not commingled between businesses.

Delaware’s Series LLC law imposes strict record keeping requirements for managers. The law conditions the liability protections afforded to each protected series and the Series LLC on these requirements being met.

Careless managers can leave both themselves and their business vulnerable to cross liability if assets are commingled between protected series. Records must be clear enough such that an outsider, like an accountant or judge, is able to determine which assets are associated with which protected series at a given point in time.

     2. Draft a Series LLC Operating Agreement.

The Series LLC Operating Agreement is the internal document that details how a Series LLC is structured. A Series LLC Operating Agreement lists and names all the protected series, who the LLC and protect series members are, and their individual ownership percentages.

Having a well written Series LLC Operating Agreement that is updated whenever protected series are added is important when operating a Delaware Series LLC in other states.

The Bottom Line.

A business can operate a Delaware Series LLC in any state. A Delaware Series LLC is the best option to maximize predictability, flexibility, and protection. Delaware LLCs have a favorable record of being well respected across the country. Entrepreneurs can be confident that forming a Series LLC in Delaware provides them with the most advanced Series LLC law offered by any state.


South Dakota Adopts Series LLC: What You Need to Know

Originating in Delaware, the Series LLC has become a popular legal entity amongst entrepreneurs looking to gain an edge for their business. Demand for the Series LLC has inspired other states to adopt this entity structure into their own laws. Twelve US states now allow for their own versions of the Series LLC. South Dakota is now one of these Series LLC destinations. 

In 2020, The South Dakota state legislature introduced amendments to section 47-34A-101 et seq., of the state’s Uniform Limited Liability Company Act allowing LLCs to establish protected series. The state’s Governor signed the amendments into law in March of that year. 

How is South Dakota Series LLC different from the Delaware Series LLC? We cover the ins-and-outs of South Dakota’s Series law and what it could mean for the future of the Series LLCs. 

What Is A South Dakota Series LLC?

South Dakota used the Illinois Series LLC as the model for its own Series LLC law. The statute allows a Series LLC to own assets either in its own name, or through one of its protected series. South Dakota requires additional filings to be made in order to create individual protected series. Each protected series must file a “Certificate of Designation” with the South Dakota Secretary of State. 

Like Illinois, South Dakota also allows protected series to be considered separate legal entities. The LLC’s formation document, called the “Articles of Organization”, must state this designation. Most states rarely include this provision in practice. 

South Dakota also imposes strict naming conventions for Series LLCs. The law explicitly requires the entire name of the LLC to be part of the name of each protected series. The purpose for this is to avoid confusion by ensuring every protected series is distinguishable from any other entity listed in the public record.

“Each protected series must file a “Certificate of Designation” with the South Dakota Secretary of State.”

Series LLC Models: Illinois, Delaware, and the Uniform Protected Series Act

In the Series LLC space, there are two preeminent models which states tend to follow: the Illinois Series LLC and the Delaware Series LLC

The Delaware Series LLC

A majority of states have chosen to follow Delaware’s lead when adopting Series LLC laws. Delaware introduced the first Series LLC law in 1996. The state legislature has since revisited and amended the law several times. The Delaware Series LLC remains the cutting edge for all legal entities today. 

Core to the Delaware Series LLC is the ability to establish an unlimited number of protected series without requiring any additional public filings. LLC members can continuously create and dissolve protected series simply by amending the LLC’s internal Operating Agreement. This allows LLC members to seamlessly implement substantial changes to the company’s legal structure as the business grows and changes. 

The Illinois Series LLC

Illinois’ Series LLC mirrors the original Delaware law by providing Series LLCs with internal liability protection. However, Illinois has chosen to implement several key differences.

First, forming an Illinois Series LLC requires an additional set of filings. Illinois requires each protected series to file a “Certificate of Designation”. This filing makes the protected series an entity of the public organic record. There is a $50 filing fee associated with creating individual protected series in Illinois. 

Illinois also imposes specific naming conventions for protected series. The name of each protected series must include the full Series LLC name. For example, a protected series for “Illinois Example LLC” could have a name along the lines of “Illinois Example LLC Series 1”. 

“Illinois requires a $50 filing fee for creating individual protected series.”

The Uniform Protected Series Act

The Uniform Law Commission drafted the Uniform Protected Series Act (UPSA) in 2017 with the intent of enhancing the Illinois approach to the Series LLC. The goal of the UPSA is to provide uniformity across state level Series LLC laws. This serves to promote further adoption of the Series LLC, as well as make it easier for protected series to operate across different jurisdictions. Several states have adopted the UPSA to represent their own Series LLC law. Some of these states include Tennessee, Colorado, Arkansas, Virginia, Iowa, and Nebraska. 

The UPSA is more prescriptive than both the Delaware and Illinois models. The Act includes more rules and requirements aimed at preventing proprietors from abusing the Series LLC to harm innocent creditors. It can be said that the Illinois Series LLC is a middle-ground between the Delaware Series LLC and the UPSA.

How Does South Dakota Treat Foreign Series LLCs?

South Dakota’s law allows Series LLCs from other states to operate in South Dakota by filing a “Certificate of Authority”. This is also known as a foreign qualification. It is important to note that a Series LLC cannot obtain a Certificate of Authority on behalf of its protected series. Each protected series of a foreign Series LLC is required to complete its own foreign qualification in order to do business in South Dakota. 

“Each protected series of a foreign Series LLC is required to complete its own foreign qualification in order to do business in South Dakota.”