Mont. Code Ann. » TITLE 35. CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS · CHAPTER 8. MONTANA LIMITED LIABILITY COMPANY ACT · Part 1. General Provisions
Montana Code Annotated

Mont. Code Ann. § 35-8-109 (2026)

Effect Of Operating Agreement -- Nonwaivable Provisions

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 35
  3. CHAPTER 8
  4. Part 1
  5. 35-8-109 Effect of operating agreement -- nonwaivable provisions

TITLE 35. CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS

CHAPTER 8. MONTANA LIMITED LIABILITY COMPANY ACT

Part 1. General Provisions

Effect Of Operating Agreement -- Nonwaivable Provisions

35-8-109. Effect of operating agreement -- nonwaivable provisions. (1) Except as provided in subsection (3), all members of a limited liability company may enter into an operating agreement, which need not be in writing, to regulate the affairs of the company and the conduct of its business and to govern relations among the members, managers, and company. To the extent that the operating agreement does not otherwise provide, this chapter governs relations among the members, managers, and company.

(2) The terms of an operating agreement must be interpreted according to Title 28, chapter 3.

(3) An operating agreement need not be in writing except as otherwise provided in this chapter to:

(a) vary the recordkeeping requirements under 35-8-405;

(b) vary the rights of members to share in distributions under 35-8-601 or 35-8-903; or

(c) vary the process for admission of members under 35-8-707.

(4) The operating agreement may not:

(a) unreasonably restrict a right to information or access to records under 35-8-405;

(b) eliminate the duty of loyalty under 35-8-310, but the agreement may:

(i) identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable; and

(ii) specify the number or percentage of members or disinterested managers that may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;

(c) unreasonably reduce the duty of care under 35-8-310;

(d) eliminate the obligation of good faith and fair dealing under 35-8-310, but the operating agreement may determine the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;

(e) vary the right to expel a member upon the occurrence of an event specified in 35-8-803;

(f) vary the requirement to wind up the limited liability company's business in a case specified in 35-8-901(1)(c) or 35-8-902; or

(g) restrict the rights of a person under this chapter, other than a manager, member, or transferee of a member's distributional interest.

History: En. Sec. 2, Ch. 302, L. 1999; amd. Sec. 1, Ch. 749, L. 2025.

Notes of Decisions
Cited in 2 cases (2 in the last 5 years), 2024–2025 · leading case: Doll v. Little Big Warm, 2024 MT 179 (Mont. 2024).
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Doll v. Little Big Warm, 2024 MT 179 (Mont. 2024). · cites it 8× “, § 35-8-109, MCA, Official Comments (“[A]n irreducible core of fiduciary responsibilities survive any contrary provision in the operating agreement.”
Herbert v. Shield Arms, 2025 MT 199 (Mont. 2025). · cites it 19× “Section 35-8-109 (2023), MCA. Among these default statutory provisions, relevant here because SA had no operating agreement, the MLLCA provides procedures for dissociation of a member, which are 24 applicable depending upon the nature of the member’s conduct, which are set forth…”
Mont. Code Ann. § 35-8-109(1): 1 case
Herbert v. Shield Arms, 2025 MT 199 (Mont. 2025). “Section 35-8-109 (2023), MCA. Among these default statutory provisions, relevant here because SA had no operating agreement, the MLLCA provides procedures for dissociation of a member, which are 24 applicable depending upon the nature of the member’s conduct, which are set forth…”
Mont. Code Ann. § 35-8-109(3)(b): 2 cases
Doll v. Little Big Warm, 2024 MT 179 (Mont. 2024). “, § 35-8-109, MCA, Official Comments (“[A]n irreducible core of fiduciary responsibilities survive any contrary provision in the operating agreement.”
Herbert v. Shield Arms, 2025 MT 199 (Mont. 2025). “Section 35-8-109 (2023), MCA. Among these default statutory provisions, relevant here because SA had no operating agreement, the MLLCA provides procedures for dissociation of a member, which are 24 applicable depending upon the nature of the member’s conduct, which are set forth…”
Mont. Code Ann. § 35-8-109(3)(c): 1 case
Doll v. Little Big Warm, 2024 MT 179 (Mont. 2024). “, § 35-8-109, MCA, Official Comments (“[A]n irreducible core of fiduciary responsibilities survive any contrary provision in the operating agreement.”
Mont. Code Ann. § 35-8-109(3)(e): 1 case
Herbert v. Shield Arms, 2025 MT 199 (Mont. 2025). “Section 35-8-109 (2023), MCA. Among these default statutory provisions, relevant here because SA had no operating agreement, the MLLCA provides procedures for dissociation of a member, which are 24 applicable depending upon the nature of the member’s conduct, which are set forth…”
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