How a Husband and Wife Can Form an LLC

By Cindy DeRuyter, J.D.

How a Husband and Wife Can Form an LLC

By Cindy DeRuyter, J.D.

Any two or more people, including husbands and wives or same-sex spouses, can establish a limited liability company (LLC). The fact that two of the LLC's members (owners) are married to each other does not impact the formation documents that must be filed with the state when starting a new business.

Married couple smile while looking at laptop

However, there may be tax and other considerations spouses should evaluate before making the decision to co-own an LLC.

Steps to Forming an LLC with Your Spouse

When you are establishing an LLC with your spouse, follow these steps:

1. Confirm that the name you want to use is available.

Regardless of where you are forming your LLC, you will need to check the availability of your desired business name. If the name you want to use is already in use or is so similar to another business' name that it could cause confusion, you will generally need to choose a new name for the LLC.

Check with the Secretary of State's office for the state where you want to form the LLC before moving ahead with additional steps.

2. Identify your registered agent.

When you establish an LLC, you need to identify the company's registered agent. This is the person or company authorized to accept government and legal notices on behalf of the business. You or your spouse can be the registered agent for your company if you are physically located in the state where you are registering your business.

3. Create your articles of organization.

Draft your LLC's articles of organization or a similar formation document, which will be used to officially register your business in your state of formation. If you are forming a business with your spouse in a state that requires the LLC's formation document to list all of its members, you will need to include both your name and your spouse's name, as well as any additional members. In some states, just one member's name is required to form a new LLC.

You can complete a downloadable form from your state's Secretary of State's website, work with a business attorney to draft your articles of organization, or use a third-party service to complete and file your formation document.

4. File the articles of organization.

Filing the articles of organization also includes paying all required fees to the Secretary of State's office. In some states, you can opt to pay a higher fee for expedited filing.

5. Draft an operating agreement.

If you will own your LLC with your spouse and/or other members, it is important to document how your business will be governed, such as how membership rights are divided, how important decisions will be made, voting rights, and the distribution of profits and losses. This is done in the company's operating agreement. You may choose to intentionally have one spouse own a larger percentage of the membership units of your LLC than the other. However, if you live in a community property state and get divorced, the courts will likely hold that you and your spouse hold equal ownership rights in your LLC, regardless of what your operating agreement states.

6. Complete other required filings.

Finally, you will need to obtain an IRS Employer Identification Number (EIN). Depending on the nature of your business, you may need to complete other filing or notification requirements, and you may need to obtain a state tax identification number.

Additional Considerations

While there are no barriers to establishing an LLC with your spouse, there are some considerations you may wish to discuss with a business attorney and/or tax professional before moving ahead.

Adding a spouse as a member of your LLC may help limit his or her personal liability for providing services to the LLC. This can protect your personal and marital assets.

An LLC owned by spouses may have to be taxed as a partnership rather than as a sole proprietorship. However, this is a point to clarify with your tax advisor, as some states will allow a two-member LLC owned by a married couple to be taxed as a disregarded entity.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.