DOL 401(k) Alternative Investments Rule: Where It Stands in 2026

The state of the law on October 10, 2026, step by step

Most pages on this topic describe a new DOL rule. There is no new rule in force. There is an executive order, a rescinded statement, a proposed regulation and a pending Supreme Court case, and each has a date and a citation.

Source: Federal Register documents 2025-15340, 2026-06178 and 2026-20360; DOL news release of August 12, 2025; DOL Information Letter of June 3, 2020; Supreme Court docket 25-498; Federal Register API search for RIN 1210-AC38 run October 10, 2026.

A correction to a common premise, including in the brief we started from: the June 2020 guidance was an information letter, not an advisory opinion. It answered a request made on behalf of Pantheon Ventures and Partners Group, whose private equity products were collective investment trusts designed to sit inside a target date or balanced fund.

What ERISA itself says

The duty that every version of this debate turns on is in the statute. Section 404(a)(1)(B) of ERISA, 29 U.S.C. 1104(a)(1)(B), requires a fiduciary to act “with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” Paragraph (C) adds a duty to diversify.

The DOL's 1979 regulation, 29 CFR 2550.404a-1, says that duty is met when the fiduciary “Has given appropriate consideration to those facts and circumstances” relevant to the investment, including its role in the plan's portfolio or menu, and “Has acted accordingly.” Nothing in either text names an asset class (our reading). That is why the 2020 letter, the 2021 statement and the 2025 rescission were all guidance about how to apply the same words, and why a court, not the DOL, has the last say when a participant sues.

The executive order says as much about itself: it is to be implemented “consistent with applicable law” and does not “create any right or benefit, substantive or procedural, enforceable at law or in equity”. Its policy line is that every saver “should have access to funds that include investments in alternative assets when the relevant plan fiduciary determines that such access provides an appropriate opportunity” for participants. The decision stays with the plan's fiduciary.

What the order counts as an alternative asset

Section 3(a) of Executive Order 14330 lists six categories. These are the plain answer to the question of what alternative investments are in the 401(k) context, because the DOL proposal repeats them word for word in proposed paragraph (c).

Source: Executive Order 14330, 90 FR 38921, section 3(a); examples are our classification.

The DOL's proposal: six factors and a presumption

The proposal would add a new section, 29 CFR 2550.404a-6, that covers the choice of every menu option, not only those with private assets. Its summary says it “clarifies, and provides a safe harbor for, a fiduciary's duty of prudence” and that it implements section 3(c) of the executive order.

The mechanism is paragraph (f). A fiduciary that “objectively, thoroughly, and analytically” considers each of six factors, alone or relying on a prudently selected adviser or investment manager, would have its judgment treated as follows: it “is presumed to have met the duties under section 404(a)(1)(B) of ERISA of such fiduciary and is entitled to significant deference.”

Source: Federal Register 2026-06178, proposed 29 CFR 2550.404a-6(f) to (l). Proposed text, not in force.

Four details that change how the proposal works in practice (our reading):

• No asset class is off-limits or favored. Proposed paragraph (c) says “there is no per se rule respecting investment in alternative assets generally”, and repeats the six categories of the order.
• Illiquidity is allowed by design. Proposed paragraph (i): “there is no requirement that a fiduciary select only fully liquid products.” It adds that a prudent process may “sacrifice some plan- or individual-level liquidity” for return.
• Brokerage windows are outside the safe harbor. Proposed paragraph (m)(2) excludes from “designated investment alternative” brokerage windows, self-directed brokerage accounts and similar arrangements that let participants pick investments beyond the menu. A fund you buy yourself through a window gets none of this protection, and neither does the fiduciary who opened the window to it.
• Target date funds are the expected channel. The DOL's own economic analysis says it “anticipates that the main channel” for alternatives would be target date funds, and cites EBSA data that 91% of 401(k) plans offered at least one target date fund in 2022, and Vanguard data that 84% of participants in defined contribution plans used one in 2024.

The proposal's scale: the DOL counts about 721,000 participant-directed plans in 2023 with about 118 million participants and more than $8.8 trillion in assets, and assumes 85%, about 613,000 plans, rely on outside service providers.

Status. The proposal was signed on March 24, 2026, published March 31, 2026, and comments were due by June 1, 2026. A search of the Federal Register for its regulation number, RIN 1210-AC38, returns one document, the proposal. No final rule, extension or withdrawal had been published as of October 10, 2026, and we found no official date for a final rule. Until one is published and takes effect, the 1979 regulation and court decisions are the law that applies.

Lawsuits: the risk the order is aimed at, now before the Supreme Court

The order calls “burdensome lawsuits” and “litigation risk” the main obstacle, and the DOL proposal says its goal is to curb ERISA litigation. The DOL's preamble repeats an industry letter alleging that new fee cases would rise from 53 in 2024 to an estimated 99 in 2025; that is the industry's figure as cited by the DOL, not a DOL count.

The live test is No. 25-498, the Intel Corp. Investment Policy Committee case. The claims concerned target date funds in Intel's plans that included hedge fund and private equity investments; the Ninth Circuit affirmed dismissal of the participants' claims in 2025 (137 F.4th 1015), and the DOL's proposal cites that ruling as an example of a prudent process. The Supreme Court granted review on January 16, 2026. The question presented is whether, for claims based on fund underperformance, a plaintiff must allege a “meaningful benchmark” to plead a breach of the duty of prudence. The United States filed a brief as amicus on July 9, 2026 and argued on October 6, 2026.

The decision had not been issued on October 10, 2026. Whichever way it goes, it will shape how hard it is to sue over a fund with private assets, and it uses the same words, “meaningful benchmark”, that the DOL proposal turns into factor (k). We do not predict the outcome.

The SEC's side: interval funds, investor tests and liquidity

Section 3(e) of the order asks the SEC to consider ways to facilitate access for participants, naming the accredited investor and qualified purchaser definitions. Two SEC steps since then matter for a 401(k) saver.

Investor tests. On October 5, 2026 the SEC published notices that it is considering new accredited-investor credentials, including passage of an exam to be developed by FINRA (comments due December 4, 2026); nothing is in force yet. Our guide to qualified purchaser vs accredited investor has the tests and the open comment periods. Registered funds such as interval funds have no investor test at all, which is why they are the vehicle most 401(k)-ready products use.

Interval fund rules. The SEC's October 5, 2026 proposal (91 FR 63388) would allow monthly repurchase intervals and more frequent discretionary repurchases, and would codify multiple share classes for closed-end funds. Its data, from Form N-CEN:

Source: Federal Register 2026-20360 (SEC, Interval Fund Modernization, October 5, 2026).

The same release is candid about the trade-off a plan fiduciary must weigh: “In early 2026, multiple non-traded BDCs and registered closed-end funds, including several interval funds, experienced increased investor demand to repurchase shares.” In several cases, it adds, investors sought to tender more than the fund offered to buy. Our list of interval funds tracks those funds one by one.

What EDGAR shows: the registered shelf is growing

We counted three filing types in the SEC's quarterly form indexes. Form N-23C3A is the notice an interval fund files for each repurchase offer, so its count tracks how many interval funds are operating.

Source: EDGAR full-index form.idx files, 2023 Q1 to 2026 Q3, counted by our script (all 15 quarters in the CSV). N-2 counts include existing funds registering more shares.

Repurchase notices rose from 90 in the third quarter of 2023 to 170 in the third quarter of 2026, up 88.9% (our arithmetic). New N-2 registrations did not jump after the order: 52 in the quarter it was signed and 57 in the third quarter of 2026. Searching the full text of EDGAR from August 7, 2025 to October 9, 2026, 19 filings quote the order's title, among them 10-Ks of Blackstone, Carlyle and Hamilton Lane and four N-2 amendments of one new fund.

What a 401(k) saver can actually buy today, and what not

There are three routes, and only one of them depends on the DOL rule.

1. A target date or managed option with private assets, chosen by your plan. This is the route the order and the proposal are built for, and on the public record it is mostly announced, not delivered. Collective investment trusts, the usual wrapper in large plans, are bank products that do not register with the SEC, so their launches do not appear on EDGAR; we list only what the sponsors told the SEC.

Source: the filings named, accession numbers as shown. A sponsor's statement is its own claim.

2. A registered interval or tender offer fund, if your plan or its brokerage window offers it. These exist now. The four below went effective in 2026. The three prospectuses we saved each say employee benefit plans, IRAs and 401(k) plans may buy shares, and that because the fund is a registered investment company its underlying assets are not “plan assets” of the investing plans under ERISA.

Source: EDGAR EFFECT notices; 424B3 prospectuses 0001398344-26-011456 and 0001398344-26-011550; N-2/A 0001999371-26-018928; filing index of CIK 2078301. More on the last fund in our Capital Group KKR interval funds page.

Two things the fee tables show. The WVB All Markets Fund's gross cost of 3.40% for Class I falls to 1.14% only because the adviser waives or reimburses 2.26%; read how long that lasts before you rely on it. And each fund-of-funds adds acquired fund fees of 0.68% to 0.76% from the underlying private funds, which are part of what you pay (our reading).

3. Outside the 401(k): a self-directed IRA or Solo 401(k). For real estate crowdfunding, non-traded REITs and private funds, this route already works and does not wait on the DOL. A self-directed IRA can hold most platform offerings; see real estate crowdfunding in an IRA and the best Roth IRA options. If you are self-employed, a Solo 401(k) is a qualified trust under section 401, one of the “qualified organization” types listed in 26 U.S.C. 514(c)(9)(C), which can exempt it from tax on debt-financed real estate income that an IRA would pay (our reading; see Solo 401(k) vs SDIRA).

What you cannot do, under any of these routes: buy a private fund limited to qualified purchasers or accredited investors directly as a menu option in an ordinary employer 401(k). Even the 2020 letter the order revived assumed the private equity sleeve would sit inside a diversified fund and said: “In no case would the private equity component of the asset allocation fund be available as a vehicle for direct investment by plan participants and beneficiaries on a stand-alone basis.”

Daily-valued 401(k)s and quarterly-liquidity funds

A 401(k) prices accounts every business day and must let participants switch funds, take loans and get paid when they leave. Private assets are valued monthly or quarterly and cannot be sold on demand. Every product above solves this by mixing, and the prospectuses say so plainly:

• The WVB All Markets Fund warns that some underlying funds “calculate their NAVs less frequently, whereas the Fund provides valuations, and issues Shares, on a daily basis.” Its sister fund, All Privates, values and sells shares monthly.
• In the T. Rowe Price Goldman Sachs fund, Goldman Sachs underlying funds “may be valued on either a monthly or quarterly basis”, while the fund itself is priced daily.
• An interval fund promises to offer to buy back 5% to 25% a quarter; a tender offer fund promises nothing. If requests exceed the offer, holders are prorated, which is what the SEC says happened at several funds in early 2026.

Proposed factors (i) and (j) are where a fiduciary has to answer this. Today's disclosure rule, 29 CFR 2550.404a-5, already requires the plan to tell participants each option's expense ratio and “a description of any restriction or limitation that may be applicable to a purchase, transfer, or withdrawal of the investment”. Read that section of your plan's annual fee notice for any option with private assets (our reading).

What you can do with this today

• Ask your plan administrator one question: does any option on the menu, including the target date fund, hold private equity, private credit, real estate funds or annuities? The fee disclosure and the fund's fact sheet name the holdings and the restrictions.
• If your plan adds one, compare its expense ratio to the target date fund you hold now, and look for transfer or withdrawal limits in the 404a-5 notice.
• If you want private markets now, the registered funds above can be bought in an IRA through a broker that carries them, and in a 401(k) only if the plan or its brokerage window offers them. Remember that a window is outside the proposed safe harbor.
• If you already hold real estate crowdfunding or private funds, a self-directed IRA or Solo 401(k) is the route that works today; our SDIRA custodian guide lists who holds what.
• Watch three dates: a final DOL rule (none scheduled in any primary source we found), the Supreme Court's decision in No. 25-498, and the SEC's December 4, 2026 comment deadline.

FAQ

Sources, read and saved on October 10, 2026: Federal Register documents 2025-15340 (Executive Order 14330, 90 FR 38921), 2026-06178 (DOL, Fiduciary Duties in Selecting Designated Investment Alternatives, proposed rule, 91 FR 16088) and 2026-20360 (SEC, Interval Fund Modernization, proposed rule, 91 FR 63388), from federalregister.gov; a Federal Register API search for RIN 1210-AC38 and for EBSA rules since April 1, 2026; DOL news release of August 12, 2025 and DOL Information Letter of June 3, 2020, from dol.gov; 29 U.S.C. 1104 and 26 U.S.C. 514 (U.S. Code 2024 edition, govinfo.gov); 29 CFR 2550.404a-1 and 2550.404a-5 from the eCFR (as of October 7, 2026); the Supreme Court docket and question presented in No. 25-498; EDGAR quarterly form indexes 2023 Q1 to 2026 Q3 and an EDGAR full-text search (scripts and outputs saved); the 424B3 prospectuses of WVB All Markets Fund and WVB Blackstone All Privates Fund, the N-2/A of T. Rowe Price Goldman Sachs All Equity Access Fund, EDGAR filing indexes of four funds; the 10-Ks of BlackRock, KKR, Apollo, Blackstone and Hamilton Lane, BlackRock's 10-Q for the quarter to June 30, 2026 and Brookfield Asset Management's 8-K of August 5, 2026. Counts and percentages are our arithmetic. This is analysis of public documents, not investment, legal or tax advice.