Why Your Pension Can Own Gold and Your 401(k) Still Can’t

Published: 08-25-2026, 05:08 pm

A corporate pension fund can put money into gold. Real estate, private equity, and commodities are all fair game too. Your 401(k) almost certainly can’t. That isn’t because gold is a bad investment. It’s because of a decades-old fiduciary rule. That rule has nothing to do with gold’s merits. It has everything to do with a plan manager’s fear of getting sued.

That gap is now the subject of a real federal rulemaking process. It isn’t just an executive order and a press release anymore. Below is what has actually changed, what hasn’t, and where the confusion is coming from. A fair amount of what’s circulating about this topic is simply wrong, so this piece corrects it first.

What Is the Fiduciary Rule Holding 401(k)s Back From Alternative Assets?

Anyone who selects investment options for a 401(k) plan takes on a legal duty of prudence under ERISA, the Employee Retirement Income Security Act. Regulators have historically judged that duty largely by outcomes. They’ve also judged it by how closely an investment resembled the conventional menu: index funds, target-date funds, plain bonds. Anything more complex or less liquid, including gold, invited litigation risk. Most plan sponsors simply weren’t willing to accept that risk.

Defined-benefit pension plans never faced that problem to the same degree. A pension’s fiduciaries answer to a smaller, more sophisticated set of stakeholders. Because of that, pensions have allocated to alternative assets, including private equity and real assets, for decades. Defined-contribution plans like 401(k)s, by contrast, have almost never done so. Nothing in ERISA explicitly forbids it, though. The barrier has been fiduciary caution, not law.

President Trump’s Executive Order 14330, “Democratizing Access to Alternative Assets for 401(k) Investors,” was written to close that exact gap. He signed it on August 7, 2025. The order directed the Department of Labor, working with the Treasury Department and the SEC, to clear a path for private equity, private credit, real estate, infrastructure, digital assets, commodities, and lifetime income strategies inside 401(k) plans [White House, Executive Order 14330]. Within days, the DOL rescinded a 2021 statement that had specifically warned fiduciaries away from private equity [Shulman Rogers].

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What Does the New DOL Rule Actually Change?

The Department of Labor’s Employee Benefits Security Administration proposed the rule that puts the executive order into practice on March 30, 2026. It’s titled “Fiduciary Duties in Selecting Designated Investment Alternatives.” The Federal Register published it the following day under RIN 1210-AC38 [DOL EBSA; Federal Register].

The mechanism is a process-based safe harbor. Instead of judging a fiduciary purely on how an investment performs, the rule lays out specific factors a fiduciary must document. Those factors include performance, fees, liquidity, valuation, benchmarks, and complexity [DOL EBSA]. Follow that documented process, and a fiduciary earns a rebuttable legal presumption. That presumption says the duty of prudence has been satisfied, even if the investment is illiquid or underperforms [Mayer Brown; Morgan Lewis].

Then-Deputy Secretary of Labor Keith Sonderling described the intent this way at the time: the rule “clearly spells out that managers must evaluate any and all potential product offerings by following a prudent process.” He called it “decidedly neutral” on which asset classes qualify [DOL EBSA]. (Sonderling has since become Acting Secretary of Labor, following Lori Chavez-DeRemer’s departure in April 2026, and was nominated in June 2026 to hold the role permanently.) That neutrality matters here. The safe harbor applies to every designated investment alternative a plan might add. It doesn’t single out gold, and it doesn’t require any plan to add anything.

Is Gold Named in the New 401(k) Rule?

No. The executive order’s definition of “alternative assets” is broad. It spans private equity, private credit, real estate, infrastructure, digital assets like cryptocurrency, commodities, and lifetime income strategies [White House, Executive Order 14330]. Commodities cover gold implicitly, the same way they cover oil or copper. But neither the executive order nor the DOL’s proposed rule singles gold out, and neither guarantees it a spot on any plan’s menu. Whether a given 401(k) eventually offers a gold option depends on that plan’s own sponsor and fiduciaries. They’d still have to work through the same documented process for gold that they’d use for any other asset class.

Has the 401(k) Gold Rule Already Taken Effect?

Not yet. This is where a lot of the coverage online goes wrong. The public comment period on the proposed rule closed June 1, 2026 [Federal Register; Alston & Bird]. As of this writing, the rule remains proposed. One law firm following the docket put it plainly in mid-July: “The rule is proposed, not final. Plan fiduciaries cannot rely on the safe harbor yet” [Lebel & Harriman]. The Department of Labor has signaled it hopes to finalize the rule by the end of 2026. That timeline isn’t locked in, though, and the final text could still differ from what was proposed [Lebel & Harriman; Gibson Dunn].

You may have seen claims that 401(k) plans could start holding gold and silver bullion as of February 2026. That claim doesn’t hold up. It appears to conflate this pending 401(k) rule with a much older, completely separate piece of tax law. That older law governs a different account type: the IRA.

Why Do People Confuse the 401(k) Rule With IRA Gold Rules?

The two really do sound alike. Only one of them is settled law, though. Individual Retirement Accounts have been allowed to hold certain physical precious metals since 1997, under Internal Revenue Code Section 408(m). The statute generally treats “collectibles” as a prohibited IRA holding. But it carves out a narrow exception for gold, silver, platinum, and palladium bullion that meets specific purity thresholds, plus a short list of named coins [26 U.S.C. § 408(m); Mat Sorensen; LegalClarity].

Silver bullion needs to be at least .999 fine. Gold needs to meet a .995 fineness standard, the minimum set for delivery on a regulated futures contract; platinum and palladium need to meet a stricter .9995 standard under the same rule [26 U.S.C. § 408(m)(3)(B); collectiblestax.com; goldretirepro.com]. American Gold Eagle coins clear the bar even though they’re only .9167 fine. Congress simply named them explicitly in the statute. American Buffalo coins qualify separately because their .9999 fineness comfortably exceeds the general .995 gold standard on its own, without needing that statutory carve-out [LegalClarity; maitlandwealth.com]. Either way, the metal has to sit in the physical possession of an IRS-approved trustee or depository. If it ever passes into the account owner’s own hands, the IRS treats that as a taxable distribution [26 U.S.C. § 408(m)(3)(B); Mat Sorensen].

None of that applies to a 401(k) plan’s investment menu, though. Section 408(m) governs what an IRA can hold. It says nothing about what a 401(k) plan sponsor can offer its participants. That’s precisely the separate question the DOL’s proposed safe harbor rule is trying to answer. Two different accounts, two different bodies of law. Only one of them has actually changed this year.

What Can You Actually Do With Your Retirement Savings Right Now?

You may be waiting a while if you’re counting on your employer’s 401(k) menu to add a gold option. The rule isn’t final yet. Even once it is, individual plan sponsors still have to choose to act on it. So if your goal is exposure to physical gold inside a tax-advantaged account today, the settled path is a self-directed IRA holding IRS-eligible bullion. That’s a real option now. Waiting on your current plan’s lineup to change isn’t.

This is also where the stakes stop being abstract. Retirement accounts are already under real strain. A record 6% of Vanguard 401(k) participants took hardship withdrawals in 2025. That’s roughly triple the pre-pandemic norm, and the sixth consecutive year the figure has climbed. The median withdrawal came to just $1,900 [Vanguard, “How America Saves 2026”]. That’s a meaningful hit against a national 401(k) median balance of $44,115 at year-end 2025, itself a record high [Vanguard, “How America Saves 2026”]. Whatever role gold plays in a portfolio, the account structure holding it isn’t a side detail. It’s the thing that decides whether you get the tax treatment you’re counting on.

Most advisors already treat some gold allocation as standard practice. The World Gold Council’s own long-running portfolio research tests gold allocations of 2.5%, 5%, 7.5%, and 10% against a typical institutional mix, and finds that adding gold at any of those levels has historically improved risk-adjusted returns [World Gold Council, “The Relevance of Gold as a Strategic Asset”]. That’s consistent with what independent advisors report in practice: a commonly cited range of 5% to 15% of a portfolio, with 10% frequently used as the benchmark figure [The Daily Upside, citing Generation Capital Advisors]. Investors who move existing retirement savings into that kind of allocation tend to do it in one deliberate decision. Usually that means an IRA rollover or transfer, not a series of small purchases. If that’s the move you’re weighing, see how a gold IRA works and what’s involved in setting one up.

What Should You Watch for Next on the 401(k) Rule?

Three things are worth tracking. First, the DOL is now reviewing the feedback from the comment period that closed June 1, 2026. Second, a final rule could land by the end of 2026, though the department hasn’t committed to a firm date [Lebel & Harriman]. Third, additional SEC rulemaking is expected to support how alternative assets actually get integrated into 401(k) platforms once any DOL rule is final [Shulman Rogers]. Until a final rule publishes, no fiduciary can rely on the safe harbor yet, and no 401(k) plan has to add gold or any other alternative asset because of it.

For a live read on where gold and silver are trading while you weigh any of this, GoldSilver’s price charts update continuously.

People Also Ask

Can I put gold in my 401(k) right now?

In practice, almost never. It still isn’t guaranteed even after the pending DOL rule finalizes. The rule creates a process fiduciaries could use to justify adding alternative assets like gold to a plan’s menu. It doesn’t require any employer’s plan to actually do so. Check with your plan administrator about what’s currently offered.

What’s the difference between the 401(k) rule and IRA gold rules?

The 401(k) rule is a proposed fiduciary safe harbor. It’s about what a plan sponsor is allowed to add to its investment menu. IRA gold rules are different: settled tax law under IRC Section 408(m) that has allowed IRAs to hold specific gold, silver, platinum, and palladium bullion since 1997. The two rules don’t govern the same accounts, and one is far more settled than the other.

When will the DOL’s 401(k) alternative assets rule be final?

There’s no confirmed date yet. The Department of Labor has said it hopes to finalize the rule by the end of 2026. That’s a stated goal, though, not a deadline. The final text could still change from what was proposed in March 2026.

SOURCES
1. The White House — Democratizing Access to Alternative Assets for 401(K) Investors, Executive Order 14330 (August 7, 2025)
2. Federal Register — Fiduciary Duties in Selecting Designated Investment Alternatives, RIN 1210-AC38 (March 31, 2026)
3. Lebel & Harriman — Alternatives Are Coming to 401(k) Plans (July 16, 2026)
4. Mat Sorensen — Precious Metals Bullion in IRAs: Satisfying the ‘Physical Possession’ Requirement (March 18, 2025)
5. Vanguard — “How America Saves 2026,” via Yahoo Finance coverage (June 17, 2026)
6. World Gold Council — The Relevance of Gold as a Strategic Asset

Disclaimer: This article is for informational purposes only and does not constitute investment advice. Past performance is not indicative of future results. Always consult a qualified financial advisor before making investment decisions.   

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