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ERISA § 405 (29 U.S.C. § 1105)

Liability for breach of co-fiduciary
USC 1994 ed., current through 1995-01-04 · superseded Jan 22, 2002 · last amended by Pub. L. 93-406
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(a) Circumstances giving rise to liability In addition to any liability which he may have under any other provisions of this part, a fiduciary with respect to a plan shall be liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan in the following circumstances:
(1) if he participates knowingly in, or knowingly undertakes to conceal, an act or omission of such other fiduciary, knowing such act or omission is a breach;
(2) if, by his failure to comply with section 1104(a)(1) of this title in the administration of his specific responsibilities which give rise to his status as a fiduciary, he has enabled such other fiduciary to commit a breach; or
(3) if he has knowledge of a breach by such other fiduciary, unless he makes reasonable efforts under the circumstances to remedy the breach.
(b) Assets held by two or more trustees
(1) Except as otherwise provided in subsection (d) of this section and in section 1103(a)(1) and (2) of this title, if the assets of a plan are held by two or more trustees—
(A) each shall use reasonable care to prevent a co-trustee from committing a breach; and
(B) they shall jointly manage and control the assets of the plan, except that nothing in this subparagraph (B) shall preclude any agreement, authorized by the trust instrument, allocating specific responsibilities, obligations, or duties among trustees, in which event a trustee to whom certain responsibilities, obligations, or duties have not been allocated shall not be liable by reason of this subparagraph (B) either individually or as a trustee for any loss resulting to the plan arising from the acts or omissions on the part of another trustee to whom such responsibilities, obligations, or duties have been allocated.
(2) Nothing in this subsection shall limit any liability that a fiduciary may have under subsection (a) of this section or any other provision of this part.
(3)
(A) In the case of a plan the assets of which are held in more than one trust, a trustee shall not be liable under paragraph (1) except with respect to an act or omission of a trustee of a trust of which he is a trustee.
(B) No trustee shall be liable under this subsection for following instructions referred to in section 1103(a)(1) of this title.
(c) Allocation of fiduciary responsibility; designated persons to carry out fiduciary responsibilities
(1) The instrument under which a plan is maintained may expressly provide for procedures (A) for allocating fiduciary responsibilities (other than trustee responsibilities) among named fiduciaries, and (B) for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities (other than trustee responsibilities) under the plan.
(2) If a plan expressly provides for a procedure described in paragraph (1), and pursuant to such procedure any fiduciary responsibility of a named fiduciary is allocated to any person, or a person is designated to carry out any such responsibility, then such named fiduciary shall not be liable for an act or omission of such person in carrying out such responsibility except to the extent that—
(A) the named fiduciary violated section 1104(a)(1) of this title—
(i) with respect to such allocation or designation,
(ii) with respect to the establishment or implementation of the procedure under this paragraph (1), or
(iii) in continuing the allocation or designation; or
(B) the named fiduciary would otherwise be liable in accordance with subsection (a) of this section.
(3) For purposes of this subsection, the term “trustee responsibility” means any responsibility provided in the plan's trust instrument (if any) to manage or control the assets of the plan, other than a power under the trust instrument of a named fiduciary to appoint an investment manager in accordance with section 1102(c)(3) of this title.
(d) Investment managers
(1) If an investment manager or managers have been appointed under section 1102(c)(3) of this title, then, notwithstanding subsections (a)(2) and (3) and subsection (b) of this section, no trustees shall be liable for the acts or omissions of such investment manager or managers, or be under an obligation to invest or otherwise manage any asset of the plan which is subject to the management of such investment manager.
(2) Nothing in this subsection shall relieve any trustee of any liability under this part for any act of such trustee.
Source credit, amendments & notes

(Pub. L. 93–406, title I, §405, Sept. 2, 1974, 88 Stat. 878.)

ERISA § 405 (29 U.S.C. § 1105) — Liability for breach of co-fiduciary · USC 1994 ed., current through 1995-01-04 · https://pensionresource.website/EAMain?content=EAMain.Law&id=usc29-1105&asof=1998-01-20 · printed Oct 16, 2026
On this page
  • (a) Circumstances giving rise to liability
  • (b) Assets held by two or more trustees
  • (c) Allocation of fiduciary responsibility; designated persons …
  • (d) Investment managers
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Also cited in 29 other documents
Department of Labor (EBSA)
Final Rules
  • 91 FR 13503 Mar 20, 2026 — Retirement Security Rule: Definition of an Investment Advice Fiduciary: Notice of Court Vacatur (a)
  • 90 FR 4192 Jan 15, 2025 — Voluntary Fiduciary Correction Program
  • 89 FR 32122 Apr 25, 2024 — Retirement Security Rule: Definition of an Investment Advice Fiduciary (a)
  • 87 FR 73822 Dec 1, 2022 — Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights
  • 85 FR 81658 Dec 16, 2020 — Fiduciary Duties Regarding Proxy Voting and Shareholder Rights (c)(1)
  • 85 FR 40589 Jul 7, 2020 — Conflict of Interest Rule-Retirement Investment Advice: Notice of Court Vacatur (a)
  • 81 FR 21208 Apr 8, 2016 — Amendments to Class Exemptions 75-1, 77-4, 80-83 and 83-1
  • 81 FR 21181 Apr 8, 2016 — Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 86-128 for Securities Transactions Involving Employee Benefit Plans and Broker-De…
  • 81 FR 21147 Apr 8, 2016 — Amendment to and Partial Revocation of Prohibited Transaction Exemption (PTE) 84-24 for Certain Transactions Involving Insurance Agents and Brokers, Pension Co…
  • 81 FR 21139 Apr 8, 2016 — Amendment to Prohibited Transaction Exemption (PTE) 75-1, Part V, Exemptions From Prohibitions Respecting Certain Classes of Transactions Involving Employee Be…
  • 81 FR 21089 Apr 8, 2016 — Class Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs
  • 81 FR 21002 Apr 8, 2016 — Best Interest Contract Exemption
  • 81 FR 20946 Apr 8, 2016 — Definition of the Term “Fiduciary”; Conflict of Interest Rule-Retirement Investment Advice (a)
Proposed Rules
  • 90 FR 35646Proposed Jul 29, 2025 — Pooled Employer Plans: Big Plans for Small Businesses Comments due Sep 29, 2025 (a)
  • 88 FR 75890Proposed Nov 3, 2023 — Retirement Security Rule: Definition of an Investment Advice Fiduciary Comments due Jan 2, 2024 (a)
  • 87 FR 71164Proposed Nov 21, 2022 — Voluntary Fiduciary Correction Program Comments due Jan 20, 2023
  • 85 FR 55219Proposed Sep 4, 2020 — Fiduciary Duties Regarding Proxy Voting and Shareholder Rights Comments due Oct 5, 2020 (c)(1)
  • 82 FR 7336Proposed Jan 19, 2017 — Proposed Best Interest Contract Exemption for Insurance Intermediaries
  • 80 FR 22035Proposed Apr 20, 2015 — Proposed Amendments to Class Exemptions 75-1, 77-4, 80-83 and 83-1 Comments due Jul 6, 2015
  • 80 FR 22021Proposed Apr 20, 2015 — Proposed Amendment to and Proposed Partial Revocation of Prohibited Transaction Exemption (PTE) 86-128 for Securities Transactions Involving Employee Benefit P… Comments due Jul 6, 2015
  • 80 FR 22010Proposed Apr 20, 2015 — Proposed Amendment to and Proposed Partial Revocation of Prohibited Transaction Exemption (PTE) 84-24 for Certain Transactions Involving Insurance Agents and B… Comments due Jul 6, 2015
  • 80 FR 22004Proposed Apr 20, 2015 — Proposed Amendment to Prohibited Transaction Exemption (PTE) 75-1, Part V, Exemptions From Prohibitions Respecting Certain Classes of Transactions Involving Em… Comments due Jul 6, 2015
  • 80 FR 21989Proposed Apr 20, 2015 — Proposed Class Exemption for Principal Transactions in Certain Debt Securities between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs Comments due Jul 6, 2015
  • 80 FR 21960Proposed Apr 20, 2015 — Proposed Best Interest Contract Exemption Comments due Jul 6, 2015
  • 80 FR 21928Proposed Apr 20, 2015 — Definition of the Term “Fiduciary”; Conflict of Interest Rule-Retirement Investment Advice Comments due Jul 6, 2015 (a)
  • 75 FR 65263Proposed Oct 22, 2010 — Definition of the Term “Fiduciary” Comments due Jan 20, 2011 (a)
Advisory Opinions
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IRS / Treasury
Final Rules
  • 89 FR 77586 Sep 23, 2024 — Requirements Related to the Mental Health Parity and Addiction Equity Act
Proposed Rules
  • 88 FR 51552Proposed Aug 3, 2023 — Requirements Related to the Mental Health Parity and Addiction Equity Act Comments due Oct 2, 2023
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Each row is a version of the text as published by the official source. Code dates are the edition/release point that first reflected the change; regulation dates are eCFR effective dates. The library checks the official sources automatically, so new versions appear here on their own; “run” opens the sync that recorded a version.

EffectiveThroughSourceAmended by
Jan 4, 1995Jan 21, 2002USC 1994 ed., current through 1995-01-04 run 49Pub. L. 93-406View
Jan 22, 2002Jan 5, 2017USC 2013 ed., current through 2014-01-16 run 13Pub. L. 93-406View · Redline (sign in)
Jan 6, 2017currentUSC 2024 ed., current through 2025-01-06 run 1Pub. L. 93-406View · Redline (sign in)
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